author: Sahdfobd, J.

text:
    S. P. Child and others v. The Sun Mutual Insurance Company.
    The clause requiring “proof of loss” in marine policies, only exacts from the assured reasonable information to the insurer as to the nature and extent of the loss, so that he may form some estimate of his rights and duties before he is obliged to pay. It does not require legal proof, such as would carry a cause to a jury on the question of loss. It suffices that the assured gives the best evidence that he possesses at the time, and it is such as to furnish a reasonable presumption of the loss claimed.
    Where the preliminary proofs under a policy on a whaling ship consisted of the ship's register, and an affidavit of one of the owners (being also the managing agent of the vessel, in whose name she was insured), stating that she had sailed for home from |he Sandwich Islands twenty months previous, and was last heard from fifteen months previous when on her way ; it was held to be sufficient.
    Under a valued policy on a whaling vessel and her outfits, and the takings homeward, in the name of C.? as asx-M, lo.'S payable to him ; preliminary proofs by C. that he wa- an owner and the managing agent, and that the vessel had set out on her hem-ward voyage, full, were held to be sufficient, as to interest, and as to the contents of the cargo.
    Where the objection? to preliminary proofs are of a kind which may be obviated it made known at the time, they will be deemed waived, if they are then overlooked or withheld.
    A newspaper h not competent evidence to prove the deviation of a missing vessel, or facts tending to -show that she left a port in the region of the world where the newspaper was published, in an unseaworthy condition.

      For the meaning of terms used in trade and commerce, the courts resort to the evidence of experts and those versed in the particular branch of trade.
    Thus, in a policy of insurance “ on a whaling voyage” the insured were permitted to prove that a whaling voyage, as understood and practised in commerce, at the date of the policy, included the taking of sea elephants on the beaches of islands and coasts, as well as whales wherever found.
    In respect of a policy executed in New York, on a Rhode Island whaling ship, the usage of insurers in New Bedford relative to policies on whaling ships, is inadmissible, because it is local, and it is not offered as the usage of both insurers and assured.
    A deviation consists in increasing or varying the risks insured against, without necessity or reasonable cause.
    It the risks be varied, it constitutes a deviation which will discharge the underwriter, although they be apparently diminished.
    This defence is founded on justice and good sense. It is not technical, and may be taken by the underwriter without any imputation against his honesty or fairness.
    Where the evidence is all on one side, or it depends on the construction of the policy, the judge at the trial should determine the question of deviation. But when, the fact that the risk was or was not altered, depends on circumstances peculiar to the pursuit in. which the vessel was engaged, and the evidence is not decisive to prove the fact, it is the province of the jury to determine the point.
    The mating of two whaling vessels, does not, as matter of law, prove a deviation, under a policy insuring a vessel on a whaling voyage. — The question must go to the jury on that and the other circumstances appearing in the case.
    The clause in a policy on. a whaling voyage, giving the vessel liberty “ to stop at all ports and places for trade, refreshments, and recruit',” does not deprive the vessel of the right to enter bays or touch and stay at islands, for taking whales, or sea elephants, if shown to be the proper purposes of a whaling voyage.
    (Before Oaxlev, Ch. J., and Vaxdeepoel and SaNDFOrd, .T. J.)
    May 23, 24, 25;
    June 30, 1849.
    This was an action upon a policy of insurance, tried before Sandfoed, J., on the 24th, 25th, and 26tli days of October, 1848. By the policy read in evidence, dated August 7th, 1843, the defendants insured “ S. P. Child, agent,” on account of whom it might concern, in case of loss to be paid to him, “ at and from Warren, July 30th, 1843, at noon, on a whaling -voyage, and to continue during her stay and cruising, and until her return to Warren, with liberty to stop at all ports and places, for trade, refreshments, and recruits; on vessel and outfits, 00,000 ; on nautical instruments, $200; upon the body, tackle, apparel, and other furniture, outfits and takings of the good whaling ship called the Jane,” and “upon the takings of the said vessel and her crew.”
    The vessel, tackle, outfits, takings, &c., insured, were valued. in the policy: the vessel at $13,500, and the outfits at $13,500 ; “ without any further account to be given by the assured to the assurers, or any of them, for the same.”
    The adventures and perils insured against were expressed in the usual form of the New York marine policies. The rate of insurance was five per cent, for two years, and pro rata for a longer time, warranting five per cent.; and in case of loss, such loss was to be paid in thirty clays after proof of loss and proof of interest. The policy contained the following clause: — “ It is agreed further, as follows : This policy attaches on provisions, oil casks, iron boilers, and whaling apparatus generally, outward, and on oil, bone, and other takings, empty casks, and whaling apparatus generally, homewards, including such other articles as may be received in exchange therefor, valuing whale oil at cents per gallon, sperm oil at cents per gallon, and whalebone at cents per pound, and other articles at such prices as they may be received at in exchange. As fast as oil, bone, and other articles of cargo are procured, this insurance is to attach on the ship-owner’s interest therein, exclusively, about two thirds of which is to apply to this policy, the crew’s share (about one third) not being covered by this insurance. One quarter part of takings to take the place of outfits. It is understood that in case the should be lost, and no person saved to prove the amount of the return cargo, this insurance, in such event, is to be considered as proof of interest in the return cargo, to the amount of the sum hereby insured.”
    Also the following clause : “ It is agreed that this policy shall not attach on oil catchings, until the blubber is boiled, and the oil put in casks, nor on the other articles of catchings, until stowed beh >w deck, nor on oil while continued on deck longer than is necessary to prepare it for stowing below. Catchings lost or jettisoned previous to being so secured, in whatever state they may be, shall not be contributed for in general average.”
    The plaintiffs offered in evidence as preliminary proofs, the policy of insurance, and the several documents following, which it was admitted were served on the defendants on the 20th day of July, 1847.
    1. A certified copy of the ship’s register, dated July 28th. 1843, by which it appeared that the Jane -was owned by the plaintiffs in this suit, together with her then master, B. Eddy, jun.; two of the owners residing in Warren, R, I., and others in Baltimore, Md.
    2. An affidavit, sworn before a public notary at Warren, July 17th, 1847, in these words : “ I, Shubael P. Child, of Warren, in the county of Bristol, in the state of Rhode Island, &c., being of lawful age, and being duly sworn according to law, do testify and say, that I was the managing agent for the owners of the ship Jane, of Warren, Rhode Island, on her late whaling voyage; that said ship sailed from said Warren, on said voyage, on the 30th day of July, A.D. 1843; that said ship was heard from at divers times and at divers places on the route of said voyage; that said ship was reported at the Sandwich Islands, on the 18th day of October, 1845, full, and bound for home; that subsequently she was reported by Captain Taber, as spoken by him on the 18th clay of November, 1845, lying off and on at the island of Wytatoche, taking in water for her voyage home; that said ship has never been heard from by this deponent, or by any one else to Ins knowledge, since said 18th day of November, 1845. And this deponent further says, that according to the regular and ordinary course of voyages in the whaling business, said ship should have arrived and was fully expected to arrive home in the course of the month of April, 1846, hut that said ship did not arrive at that time, nor has she since arrived or been heard from by this deponent. And he has no doubt, but fully believes, that said ship and cargo has been lost at sea, and no person of her company been saved.”
    3. A letter from the agent of S. P. Child to the defendant, dated New York, July 20th, 1847, in these words : — “ I draw your attention to the preliminary proof of interest and loss in the case of the policy on ship ‘Jane,’ outfits, &c., namely copy of register lately delivered, and affidavit of S. P. Child, agent and owner, now submitted, the policy itself being proof of interest,”
    The defendants’ counsel objected to the preliminary proofs on the following grounds, viz.:
    1. That as they did not show the usual length of a voyage from the Sandwich Islands to the United States, and as the affidavit was sworn to by only one of the owners, there was not sufficient evidence to authorize the inference of the ship’s loss.
    2. That the interest of the owners of the cargo was not stated.
    3. That the contents of the cargo did not- appear.
    The court overruled these objections, and decided that the preliminary proofs were sufficient, to which decision the defendants’ counsel excepted. (It appeared that the suit was commenced in October, 1847.)
    The plaintiffs proved by a sister of the master of the vessel, residing at Warren, that the Jane was expected to return to "Warren in March, 1846 ; and that neither the master nor the vessel has ever been heard from by his family since October 15, 1845, when the vessel was at Honolulu, about to proceed directly home. It is their belief that he has been lost at sea in the vessel.
    They also proved by Ellery Nash, the master of a whaling vessel, that he saw the Jane and Capt. Eddy at the Sandwich Islands in October, 1845, when the Jane was got under weigh to return home. She was deep in the water, as if full, and appeared fit for the voyage. The voyage from there home, is usually five months. (The plaintiffs subsequently gave further proof on this subject.)
    The plaintiffs then rested. The defendants moved for a non-suit, on the ground of want of proof of loss and interest in the cargo; which motion was denied by the court, and they took an exception.
    The defendants then proceeded to their defence, and proved by J. Bunker, the first officer of the whaling ship Eagle, that in October, 1844, the Jane came into the port of San Diego in California, for recruits, having on board about sixteen hundred barrels of whale oil. The Eagle next met the Jane off Ceros island, two or three days’ sail south of San Diego, on the coast of Lower California. The Jane was taking sea elephants from the island, and had taken there one hundred and twenty barrels of sea elephant oil. The Eagle and the Jane then commenced “ mateshiy,” that is, working the two ships and their crews together, for the common benefit of both ships, in the taking of sea elephants. They continued thus mated, till February 7th, 1845, during which time they took about eleven hundred barrels of elephant oil. They took no' whales during that period. While mated, the Jane Jay at anchor in a bay of Ceros island, with the second mate and three men on board ; the Eagle was lying off and on, on the west side of the island. The other men of the two crews were engaged in killing sea elephants on the island, and bringing the blubber on board the Eagle, where it was tried out. In th is employment they used the boats of both vessels. The Jane went from Ceros down the coast, then to the Sandwich Islands, and then to the northwest coast in pursuit of whales.
    A great deal of evidence was then given to show, on the part of the plaintiffs, that the taking of sea elephants was in the usual course of the business of whaling, and that it constituted a part of a whaling voyage, as understood and practised by those engaged in whaling from the various ports of the United States, at and before the period when the Jane sailed on her last voyage. This evidence was objected to on the part of the defendants, but admitted by the court. The defendants went into counter evidence on the same point. In the course of this proof, the respective parties called witnesses, who were masters of whaling vessels, and who had been engaged in that pursuit for various periods, from fifteen to forty-four years, from all the principal ports in the United States from which whalers usually sail, — several of whom had cruised for whales in every known sea on the globe where whales are taken. There were twenty witnesses examined on this subject, all of whom had thus been engaged in whaling. Their evidence is referred to in the charge of the judge, and although very intelligent, interesting, and instructive, it is deemed unnecessary to state it at large in this place.
    It appeared by the evidence, that sea elephants are amphibious animals, living in the water a considerable part of the year, and hairy like seals. They are killed on land with lances or harpoons, though a short lance is better for the purpose than a harpoon. Sometimes they are shot with muskets. They collect in large numbers on the beaches on the coasts where they are found. The oil is tried out in the same manner as whale oil. It is a little more valuable in the market than right whale oil, and is known in commerce as elephant oil.
    The plaintiffs gave evidence to show that whales had been seen and taken in the vicinity of Ceros Island, and it was considered whaling ground. That the island is a good roadstead anchorage, sheltered from the prevailing wind, which is northwest. There was some contrariety of evidence as to the safety of the anchorage there. Also as to the comparative safety of whaling and sea elephanting.
    It appeared that black whales, called also California greys, are taken along the coast of Lower California. The usual course of whaling ships in the Pacific was, after recruiting at the ¡Sandwich Islands on their way out, to proceed to the Northwest coast, and whale from June until October, some of them cruising to Kamschatka; then to return to the Sandwich Islands or to the coast of California to recruit, and if not full, to fill up the intermediate season in whaling along the latter coast, or on the coast of Peru, and in the following spring again proceed to the Northwest coast.
    The defendants’ counsel offered to read an article of marine intelligence from a file of the Seaman’s Friend, published at Honolulu, under date of April 15th, 1845, for the purpose of showing that the Jane veas at Honolulu on the 30th of March, 1845, with certain quantities of whale oil and elephant oil, and that that fact was published.
    It was proved that the Seaman’s Friend was sent to this country regularly. The plaintiffs’ counsel objected to the reading of the newspaper as evidence, and the court decided that it was inadmissible, to which decision the defendants’ counsel excepted.
    The defendants called as a witness Captain Simmons, of the ship Magnolia of New Bedford, which in November, 1846, and before and after that month, was engaged in taking sea elephants at and near Ceros island. He produced the policy under which the Magnolia sailed on Mint voyage. The defendants’ counsel then offi-ivd to ¡irove by tile, witness, and 1>\ the terms of the policy under v.liieh lie sailed, that although the policy was tor a whaling toy age, express permission was given by an amendment thereon endorsed, at the request of the assured, to take sea elephants, and that ibr this permission an additional premium was paid ; but the evidence oili-red was objected to, and the court decided to exclude it, to which decision defendants’counsel excepted. Defendants' counsel further ottered to prove, that previous to the date of the polie\ in suit, it had been the general and uuiiorm usage at New JJedtbrd of assurers, when it was intended to employ a vessel ¡inured on a whaling \oyage in taking sea elephants, to insert a liberty to that ellect in the policy, and that tor this liberty an additional premium ivas paid. This testimony was also excluded bv the decision of the court, to which decision defendants’ counsel excepted.
    It wa' proved that Talcahuana, in Chili, was about a month -•mi of the course of a vessel sailing from the Sandwich Islands to the l idled States. The defendants' counsel then produced a newspaper called “The Polyne-ian," purporting to be published at Honolulu on the Lffid day of Nay. IT-17, and oili-red to show that it y\as in fact published there at that time, and was brought to this country, and that it contained an article of intelligence a- follows, via. Whaleship .lane, Captain Eddy, ol‘ Warren, II. 1. — This vessel left here Oct. loth. l*4f>, with dh0(J bids, of oil for the D. S. Nov. Is she was spoken oil the Society ¡'lands. Since then, up to Dec., 1*4(1, nothing ]uu] been heard of her by her owuers. From Nr. Vida, of the firm of Vida C Vou I’ji'ter of that place, we learn that late in Dec., 1*4.1, or dan.. 1*4(1, he does not recollect which month, the .lane anchored below Point Vincent, near Talcahuana, for potatoes. The officer of tin port ordered her to Talcahuana that lie might secure his anchorage dues, &c. Capt. Eddy refused to go. and sailed immediately for tin* island of St. Marv’s, farther down the coast, and anchored at high tide close in. Mr. Vida boarded her to purchase oil, and at the captain’s invitation stayed all night. When the tide fell, the ship thumped heavily, unshipped lien rudder, knocked in her roundhouse, and began to leak. Mr. Yida advised the captain to put into Talcahuana and ascertain damages. He refused to do this, saying that if the leak should prove bad, he could put into Chiloe. The next clay he got under weigh and stood out to sea. Since then nothing has been heard of the ship, and the probability is that she foundered.”
    Defendants’ counsel stated that his object in offering this evidence was to prove that the date of the last authentic intelligence published concerning the Jane and received by her owners, as this in fact was, was not so remote as they had represented it to be, and thereby to weaken the presumption of a loss which might arise from the testimony already introduced. Plaintiffs’ counsel objected to the evidence offered, and it was thereupon decided by the court to be inadmissible, to which decision defendants’ counsel excepted.
    The testimony having been closed, the counsel for the defendants requested the court to charge the jury, that the provision in the policy giving liberty to stop at all ports, &c., was restrictive, and prohibited the entry into any ports or places other than those therein expressed. That the Jane, under the policy, had no right to go and stay at Ceros, for any purpose but for trade, refreshment, and recruits, and her stay there was therefore a deviation. That if she had a right to go there to take sea elephants, then her mode of prosecuting it was improper, if she entered into a contract of mateship with the Eagle, That the court should instruct the jury that a “ whaling voyage ” in this policy means a voyage undertaken to apprehend whales; and the contract showing that clearly upon its lace, the evidence given to explain by usage or otherwise, the meaning of the term “ whaling voyage,” ought to be disregarded and stricken out.
    The plaintiffs’ counsel also submitted certain propositions, which they requested should be charged by the judge.
    The court charged the jury, amongst other things, as follows : “ The evidence is prima facie sufficient to warrant the jury in inferring that the vessel was lost by the perils of the seas.
    “ The defence set up is mainly an alleged deviation of the vessel from the voyage insured. A deviation consists in increasing or van nig the risks insured against, without necessity or reasonable cause; and it may consist in a simple variation, without an apparent increase of the risks. The reason why a deviation discharges the underwriters is that which has been stated by the counsel, namely, the impossibility of discerning clearly tin effect of the alteration, or of saying whether the di-a-tor was or was not caused thereby. This, if established, is a good defence. It is not a technical defence, but is founded in justice and good sense, and is one which the nuderwriteife may take without any imputation against their huuesh or fair-iie-s. And its character as a defence is not to be aileded by the (jiiestiou whether or not the deviation increased the risk.”
    “ I he clause in the policy giving liberty to stop at pons. Ac., for recruits, wa- inserted for greater caution, rather than as a restriction. Jt did nut deprive the Jane of the right to enter bays, or touch and stay at islands, for the proper purposes of a whaling voyage.’
    “ It is a principle of law. that underwriters an bound and presumed to know the course of trade in the departments in which they insure. Keeping this in mind, and also remembering the nature of a deviation, your attention is called to the principal question in the case, namely, what were the takings in the usual course of a whaling voyage, at the time this policy was made ? I am asked to instruct you that by this policy the insured were restricted to the taking of whales only; but I cannot say as matter of law, what a ‘whaling voyage’ is. That must be determined upon the testimony of those acquainted with the pursuit. This question you must determine according to the evidence before you; restricting your inquiry to vessels engaged in voyages undertaken for the same purposes as that of the Jane, which was simply a whaling voyage. It may be stated, so as to be more particularly applicable to this case, in another wave Did the usual course of a whaling voyage, as understood in commerce, at the time this policy was effected, include the talcing of sea elephants, in the manner and for the period pursued, by the Jane, as proved by the witness Bunker ? This you will decide upon the testimony, of wliich I can only state its outlines.

      “ You have remarked by the testimony of several of the witnesses, that some vessels are fitted expressly for the purpose of taking sea elephants. Such voyages are no criterion for the formation of your judgment in this case. Other vessels were fitted with peculiar equipments, such as short lances, shallops, &e., and these were called whaling vessels. Where voyages were undertaken for elephanting only, further ground tackle has been mentioned as necessary by some of the witnesses ; while others say that no more is requisite than is proper and is taken for whaling, in modem times. All the witnesses agree, that whalers in pursuit of whales, take elephants and other sea animals yielding oil. if found in their eruisings. Some of the witnesses speak of Ceros and its vicinity as whaling ground, and as a usual cruising ground of whalers between the seasons on the Northwest coast. It also appears that only a few vessels in proportion to the whole number engaged in whaling, take sea elephants, and those take them only in small numbers. This is relied upon by the defendants as showing that it is not in the usual course of whaling voyages to take these animals. Whether it is for that cause, or it is because being found only on beaches and coasts, and not very abundantly, there are thus fewer opportunities to take them, it is for the jury to sayo
    “ Then, was the Jane, while at Ceros island, from Nov., 1844, to the 7th of February, 1845, engaged in a whaling adventure in the usual way, or had she entirely abandoned her whaling voyage, and was she devoted to a distinct purpose ? Was she there spending the ‘ between season ’ of the Northwest whale fishery, in a better climate, seeking whales, and filling up with such sea elephants as she might meet; or was she seeking elephants exclusively, without at all aiming to capture whales ? If the latter was the case, the testimony will not sustain you in saying that she was in the prosecution of a whaling voyage. This part of the case is so important, that I repeat in substance what I have stated. Was the Jane, while at Ceros, in the pursuit of whales as she could find them, and taking sea elepliants and whatever else came in her way to fill up ; or did she abandon the pursuit of whales during that period, and make clephantiiig the object of her pursuit exclusively 1 If the latter were the fact, the testimony will not sustain you in finding that she was in the usual course of a whaling voyage. If you find that she was in pursuit of whales and sea elepliants, it is a question for you, as 1 have before submitted, whether or not that- was in the regular prosecution of a whaling voyage. If you find that it was not, or if you find that she was engaged exclusively in sea clephantiiig, having for the time abandoned the pursuit of whales, there was a deviation which discharged the defendants, whether the risk was thereby increased or not. That circumstance makes no difference, as I have already instructed you, and the result would be the same, if you should think that the risk was thereby diminished.
    “If no deviation of this kind is established to your satisfaction, you are next to inquire whether the mating of the Jane with the ship Eagle, as proved by the witness, Bunker, constituted a deviation. It depends upon the question whether or not it altered or varied the risks insured against.’’ On this point the judge reviewed the testimony and put the question to the jury, “ Was the risk thereby altered or varied i If it were, the mating constituted a deviation and discharged the underwriters. If the risk were not changed or altered, the mating furnishes no defence.”
    The respective counsel excepted to the charge of the court, so. far as it, failed to conform to the points submitted by them; respectively.
    The jury rendered a verdict for the plaintiffs for the amount of the policy.

      IT. Ketchmn, for the defendants,
    argued the following points:
    I. The preliminary proofs did not furnish, sufficient proof of loss to authorize a claim upon the defendants. The party-should furnish the best evidence the nature of the case admits-, and the facts stated, should be such as, at the trial, would caray-the cause to the jury. Here the affidavit was not made by the owners, and it does not aver inquiry or any diligence to learn the fate of the vessel. (1 Park on Ins. 147, 148 ; 3 SteplwN, P. 2213 ; Gordon v. Benone, 2 John, R, 150; Ojppenheim v. Leo Wolf\ 3 Sand. Cb. R. 571.)
    II. The court erred in refusing in evidence, the article published in a newspaper at Honolulu called “ The Polynesian.” This evidence ought to have gone to the jury to rebut the presumptive evidence of the loss of the vessel. So ought also the testimony offered from the “ Seaman’s Friend.” (Williams v. East In. Co., 3 East 192; 2 Stephen’s N. P. 1550, 1553. Gordon v. Bourne, 2 John. E. 154.)
    III. The court erred in admitting the various questions as to what were the takings in vessels fitted for whaling voyages, and as to what constituted a whaling voyage ; because,
    1. The expressions “whaling voyage,” mean a voyage for apprehending whales.
    2. The context of the policy confirms this view,
    3. Proofs, therefore, that vessels employed on a whaling voyage take sea elephants, is contradictory of the terms of the contract, and is not admissible. (1 Duer on Ins. 176, § 27 and note (a) on page 177 ; Id. 179, § 30, and 182, 183 ; 4 East 135 ; 10 Barn & Cr. 817 ; 3 Kent Comm. 260 note ; .Renner v. Barde of Columbia, 9 Wheat. 587.)
    IV. The evidence offered, proposed to prove that a usage exists that a vessel on a whaling voyage may take sea elephants. Sea elephants are not taken at sea, but on the land. Therefore in order to take sea elephants, a vessel must touch and stay. Express provision is given in the policy, “ to toucli and stay at any ports or places if thereunto obliged by stress of weather, or any other unavoidable accident;” also, “ to stop at all ports and places for trade, refreshment, and recruits.” These express privileges “ to touch and stay,” exclude the idea that tibe parties intended her to touch and stay for any other purpose. (Elliot v. Wilwn, 4 Brown’s Pari. 470; Doyle v. Powell, 4 Bam. & Adolph. 267.)
    V. No usage was proved that a whaling voyage included a voyage for the taking of sea elephants. The court was bound so to instruct the jury. Out of 430 vessels, respecting which evidence was given, only thirty-one were engaged in taking sea elephants. (1 Duer 182, 183; 1 Greenleaf 335, § 292, and note (ii on page 330 ; 3 Starkie Ev. 453 ; Smith’s Leading Case? 41S [31 n ] ; Dfni'xon v. Kittle, 4 Hill 107.)
    YI. If the evidence uf usage were properly submitted to the jury, ii wn.- not such as to prove the existence of the usage sought to he established, and the verdict is therefore contrary to the evidence.
    YJ i. There being no usage to i ary the plain and explicit tonus of the contract of insurance, it stands before the court that the assured paid their premium for indemnity against the risks of a Tywigv in the pursuit and apprehension of whales only; and ¡hat uu that voyage the vessel was not authorized to touch and ¡'lay for any hut .specific purposes, among which the taking oí sea elephants is not included. Any departure from the voyage linn specified and agreed upon, is a deviation.
    A'III. The detention of the Jane at the island of Ceros, was u<4 authorized by the privilege inserted in the policy “ of liberty to stop at all ports and places for trade, refreshment, and recruits.*’ It is not pretended that she stopped at Ceros for either of fhew purposes, and she was not at liberty to stop for any other purpose, fcfhe might probably cruise for whales in a bay, because «diales are sometimes caught in a bay, but she could not, under the terms of the policy, stop, come to, and anchor, and pursue any other purpose on shore, except the obtaining of refreshment and recruits. (Hammond v. Seed, 4 Barn. & Aid. 72 ; Sully v. Whitmore, 5 Ibid. 45.)
    IX. The contract of mateskip made and executed by the Jane with the Eagle, was not authorized by the policy, and the judge erred in charging the jury that if by entering into and executing such a contract the risks insured against were altered or varied, the insurers were discharged. (Tenrumt v. Henderson, 1 Dow. Pari. Ca. 324.)
    X. The testimony offered by defendants as to the New Bed-ford policy taken by Capt. Simmons, and the usage at New Bedford, which port sends out twice as many whalers as any other in the world, was improperly excluded. {Constable v. Noble, 2 Taunton, 403.)
    XI. Most of the policies in this business are underwritten at that port; and the evidence was direct as to the usage and course of trade in respect of taking sea elephants.

      I). lord, for the plaintiffs,
    argued the following points.
    First. 1. Evidence as to what whaling voyages embraced, by witnesses who had conducted them, was admissible. It was not evidence of usage, to give any peculiar sense to the language of the policy. It was evidence as to the state of the trade, to show the subject, to which the policy in its ordinary language applied.
    2. The question as to what whaling voyages, as actually carried on, embraced, was rightly submitted to the jury, and with instructions of which- the defendants cannot justly complain.
    Second. 1. Evidence of an express permission to take elephants, endorsed after the voyage was begun, on the policy spoken of by Simmons, was rightly excluded.
    It was no evidence of the whaling trade, as actually pursued.
    It was not shown how far the parties to that policy were conversant with the trade.
    Such an act by the parties to that policy could have no bearing on the whaling voyage insured by the policy in suit.
    2. The evidence offered of the usage of underwriters at New Bedford to insert clauses, expressly permitting elephants to be taken for an increase of premium, was inadmissible. It was a local usage. It was evidence of the practice of underwriters only. (7 Wend. 72; Ibid. 270.)
    The insertion of special clauses is as frequently caused by extra timidity as by any necessity.
    It was no evidence of the open and public character of the whaling trade as in fact practised.
    Third. 1. The law of deviation, in relation to the abandonment of whaling operating to defeat the policy, was laid down in such a manner as to give no just ground of complaint to the defendants.
    2. If whaling voyages as in* fact conducted, allowed of the taking of elephants at Ceros island, then the law as to the mating of ships was correctly laid down.

      The ship being in the business insured, the master had a right to determine as to the best mode of conducting it.
    The policy was on time, and allowed of every latitude of time so long as the business of the voyage was not abandoned.
    3. The doctrines of deviation, in the strict form claimed by the defendants, are not applicable to whaling voyages and where the policy is on time.
   By the Cotjet,

Sahdfobd, J.

The defendants’ first exception to the ruling of the judge at the trial, was on the admission of the preliminary proofs. It is objected that they did not furnish sufficient proof of the loss to authorize- a claim for payment, because the affidavit presented was not made by the owners of the vessel, it did not aver any inquiry or any diligence to ascertain her actual state, it was not the best evidence the nature of the case admitted of, and it did not state facts, which, if proved at the trial, would have carried the cause to the jury on the question of actual loss.

On this subject, it is to be observed, that the “proof of loss required by the policy preliminary to the obligation to pay, is not legal proof / such as would be competent to carry the cause to the jury on the question at issue. (Talcot v. Marine Insurance Co., 2 John. R. 130.) It was said by Kent, Ch. J., delivering the opinion of the court in Barker v. Phœnix Insurance Co., 8 John. 307, that the object of this clause in the policy, was only to furnish reasonable information to the insurer, so that he might be able to form some estimate of his rights and duties, before he was obliged to pay; it has always been liberally expounded, and is construed to require only the best evidence of the fact that the party possesses at the time. This opinion was reiterated by Thompson, Ch. J., delivering the judgment of the court, in Lawrence v. The Ocean Insurance Co., 11 John. 242; and it is the well established law in this State. (See Pacific Insurance Co. v. Catlett, 4 Wend. 83.) The protest in one case, and copies of the letters communicating intelligence of the disaster in others, have been held sufficient.

Here, the managing agent, in whose name alone the policy was effected, made the affidavit. The facts stated, and the lapse of time, were abundant to give the underwriters the requisite information to enable them to estimate what were their rights and their duty under the policy. If all the owners had joined in making the affidavit, it would not have communicated anything more to the insurers. The circumstances did not call for any particular exercise of diligence. The vessel had been due for fifteen months, and had not been heard of in twenty months by the managing agent. The nature of the case did not reasonably admit of anything more.

A further reason requires that the clause should be liberally expounded in tin's instance. No objection to the sufficiency of the preliminary proof was made by the defendants, when it was presented. All of those now raised, if they were well founded, are of such a nature that they might have been obviated if they had then been made known; and fairness to the assured, demands that if then overlooked or withheld, they should now be deemed waived.

The two other objections to the preliminary proofs, which appear in the case, were not urged on the argument. The suggestion made in regard to the case already examined is applicable to both of these. As to the one that the interest of the owners of i he cargo was not stated, we will add, this was a valued policy on the vessel and outfits, insured by Child as agent, the loss to be. paid to him, and it was claimed by him. This was clearly sufficient, as payment to him would have discharged the obligation.

The remaining ground, that the contents of the cargo did not appear, is wholly unfounded. The ship was a whaling vessel, which (the affidavit stated) had set out on her homeward voyage full; the subject matter insured as outfits, having been converted into a full cargo of oil and bone, or “ takings,” as it is expressed in the policy. If these objections were intended to point at the extent of the interest of the assured, they would be equally untenable; a substantial interest appearing, and the policy being valued. (Atlantic Insurance Co. v. Lunar, 1 Sand. Ch. R. 97; 2 Phill. on Ins. 743.)

2. The newspaper testimony, offered to show that the Jane was at the Sandwich Islands in March, 1845, -was entirely irrelevant in every aspect in -which it was urged; the plaintiffs, in their preliminary proofs, having conceded that she was at those islands in October following.

The newspaper article which the defendants proposed to read from '■'The Polynesian” of May 22, 1847, was also properly rejected. The ostensible purpose for which it was offered, so far as it affected the plaintiffs’ knowledge of the loss, was plainly incapable of being effected; for the preliminary proofs were submitted to the defendants on the 20th of July, 1847, at which time it was impossible for the plaintiffs to have seen or heard of the article in the Polynesian. And as to the proposed object, to weaken the presumption of the loss of the vessel, not only would the trifling difference of one month have failed to produce any such effect, when nearly three years had elapsed without any tidings from her, but the circumstances detailed in the newspaper were such as to corroborate very strongly her alleged loss by the perils of the seas.

If these were the only objects sought, the defendants could have attained them by reading that portion of the article which stated the touching of the Jane near Taleahuana; but this was not offered or proposed. The real gist of the article was the statement of facts, showing that the captain was far out of his proper course on his homeward voyage, that he carelessly anchored the Jane where her bottom was injured, and that lie put to sea while she was in an unseaworthy condition. These were important facts undoubtedly, if they could have been proved ; but no legitimate proof ivas offered. The newspaper was not competent evidence to prove such facts. It was hearsay testimony, twice removed; and it was the duty oí'the judge to exclude the article. It is unnecessary for us to consider, whether as to any portion of the article, if offend separately, the newspaper would have been a competent instrument of evidence.

3. The great mass of the testimony at the trial ivas advanced to show what was a '•'•whaling voyage,” as understood and prac-tised in commerce, when this policy was effected. The defendants objected to the admission of the testimony offered on this point, so far as it went to show that it was the usage to take sea elephants as well as whales, in the prosecution of such a voyage. They contend, 1. That the expression “ whaling voyage ” in this policy means a voyage for apprehending whales only; and the testimony admitted was offered to vary and contradict the plain and distinct terms of the contract between the parties. 2. That this construction of its terms was corroborated by the context of the policy, which speaks of valuing whale oil, sperm, oil, and whale bone, but nowhere alludes to such an article as elephant oil, which, it is proved, is known by that name, and not as vdiale oil in commerce.

As to these objections, we say: — 1. We are not informed, judicially, what is meant by a “ whaling voyage,” It is a term used in trade and commerce, for the meaning of which, like man y others, the courts resort to the evidence of experts and those versed in the particular branch of trade. Whether this be denominated proof of a usage, or evidence given to indicate the subject matter of the policy, and to point out its application; it is unquestionably competent, and was properly received at the trial. Ur. Justice Duer, in his admirable treatise on marine ¡nominee, illustrates very fully this rule of evidence. He says, in Mibr-tance. that the law ascribes to the insurer a knowledge, iii.¡ onlv of the general usages of commerce, but of the course u.-mully pursued in each particular voyage-or trade that may be the -object of an insurance ; and when words which merchants employ in the prosecution of the trade- to which an insurance relate-, are introduced into the policy, the insurer must presume that they will be understood by the assured in the sense in wliiel) alone In' ha» been accustomed to use them. (1 Duer on Jus. 1 SI, l!i(i. ⅜§ 33, 42, 43.) Parol evidence to prove the exi-leiiee of the general practice or course in which the trade or voyage ha- been pursued, is admissible- in such cases, when ,-m-b practice would not be embraced by the terms of the policy in their ordinary interpretation. (Ibid. 195, § 42.) The competency of this species of evidence was affirmed by this court in Hone v. The Mutual Safety Insurance Co., 1 Sand. R. 137, 150. We al-o refer to 1 Phill. on Ins. 4S9, and the cases there cited. Among the illustrations of this principle, which are quite analogous to the proof offered in the case at bar, will be found the in.Mauces of un “ India voyage," a “ China voyage," a “ voyage to Africa," and a “fulling voyage." IA idenee of other usages in whaling voyages lias been sanctioned; as in Fennings v. Lord Grenville, 1 Taunt. 241, where it was proved to be the custom that be who strikes a whale with a loose harpoon, is entitled to recede half the produce from him who kills it; and in Baxter v. Rodman, 3 Pick. 435. where a usage to mate whaling- vessels was proved.

In truth, the proof offered in the case before Us, did not go to show a practice beyond the terms of the policy, construed by their ordinary signification. Assuming that a " whaling voyage” would in common parlance be taken to mean a voyage for the purpose of faking whales only, to the exclusion of other marine animals yielding oil, (the oil being the chief object of such voyages;) yet the other clauses of the policy, (adopting the same key to its construction,) show that something besides whales was intended, or was at least permitted. One clause declares that the policy attaches on oil, ho/o-, mol ofh r fidd/ir/*, &c., homeward: which being followed by an enumeration of whale oil, sperm oil, and whale bone, with blank valuations, would lead almost irresistibly to the conclusion, that the word “oil," in the previous paragraph, related to sperm and whale oil, and that the words “other takings,” related to some other object which fell within the purview of a winding voyage. The evidence given to show what such object was. did not, theJeibre, extend the terms of the policy in any mode of construing it.

4. It veas contended that the usage to take sea elephants, which are only taken on land, necessarily involved the overruling of the written contract between the parties in this, that the policy, by giving express permission “to stop at all ports and places ibr trade, refreshment, and recruits," excluded the vessel insured from touching or staying ibr any other purpose. It was also urged in a subsequent point, that the detention of the Jane at Ceros island, was a deviation; she having virtually touched and stopped there, and not for either of the purposes for which ■ the express permission was given by the policy.

On this subject, the privilege expressed by these words in the nicy, was inherent in every whaling voyage, with the exeeption of the right to trade. The judge held at the trial, that the clause did not restrict the vessel from going into bays and along coasts and islands, in the prosecution of the whaling voyage on which she sailed; and the counsel for the defendants did not dispute the accuracy of this ruling. (And see 1 Phill. on Ins., 502, &c.) The judge further held, and so instructed the jury in distinct and pointed terms, that if the Jane went to Ceros island for any object, other than the usual purposes of a whaling voyage ; or stayed there for any other purpose; or if the vicinity of the island was not whaling ground : in either event, her voyage and stay there were a deviation, and discharged the defendants. This was sufficiently favorable to the defendants, and we need not further advert to the argument founded oil the permission to touch and stay.

5. In the order of their argument, the two next points of the defendants relate to the sufficiency of the proof of the usage or practice to take sea elephants in the course of a whaling voyage. It is contended that the evidence in its support was too feeble to be submitted to the jury ; and if it were properly submitted, that their verdict was contrary to the evidence. As to these points we have no hesitation in saying, that the judge would have erred if he had withheld the question from the jury ; and that there, is no good ground for our interfering with their verdict on the score that it is against the weight of evidence.

6. The defendants at the trial offered to prove by one of the witnesses, a master of a whaling vessel belonging to New Bedford, which had taken sea elephants at and near Ceros island, in November, 1846, that he sailed under a policy for a whaling voyage, and that the policy was subsequently amended, by indorsing an express permission to take sea elephants, for which an additional premium was paid. They also offered to prove, that previous to the date of the policy in suit, it had been the general and uniform usage of assurers at New Bedford, when it was intended to employ in taking sea elephants, a vessel insured on a whaling voyage, to insert a liberty to that effect in the policy, for which liberty an additional premium was paid. The judge excluded the testimony so offered.

As tu the fir.-t oiler, it was au act Intu' i/Iiox. neither of whom was present tit show under what circumstances, or with what views it was done. The police was so amended two or three years at least after the policy in suit was effected, and, in fact, after the time when the loss probably occurred. The testimony did not tend to show how a whaling vovage was actually prosecuted in and prior to IS43, in respect of sea elephantine.

As to the oiler of the New "Bedford usage, it should he Mated on the one hand, it appeared that the port of Yew Bedford was the most extensively engaged in the whale fishery of any in the Lnited States, owning and employing about a third of the entire fleet of whalers: and on the other hand, that very few of the New Bedford whalers were shown to have ever engaged in the pursuit of sea elephants; a great proportion of them seeking the sperm whale, which led them away from the resorts of the sea elephant.

Oil considering the point, we think the proposed evidence was inadmissible, for two reasons at least; viz. — 1. It was a local usage, not extending fo Xew 1 ork where the policy in suit was made : imr to Warren, It. L, where the a,-Mired resided, and to which port tin; vessel belonged, if. It was the usage of the, assurers only; and, although from the paynunt of premium, we might infer the assent of the assured, the limited terms of the offer would leave it in doubt, whether the assent was a ratification or admission of the usage, or was caused by greater caution and a desire to leave no room for controversy. Tf it were the well established usage at New Bedford, that a whaling voyage did not include sea eleplmuting, the underwriter.-, and the owners and masters of winders in that port, could have proved it far more satisfactorily than it could possibly be done by the production, without explanation, of the policies executed by and between them. It would then have appeared whether the insurers there refused to pay a loss in cases where the vessel insured had taken sea elephants, without any permissive clause in the policy. 4

7. The defendants insisted that the contract of matesMp made and executed by tbe Jane with the ship Eagle, was not authorized by the policy, and discharged the underwriters. It is only because the mating varied the ri-lw in-uml agam-t, i. e. constituted a deviation, that it can be claimed to have avoided the policy. No complaint was made in regard to the judge’s instruction to the jury as to what in law constituted a deviation, and his charge as to the good faith of a defence on that ground, was warmly eulogized by the defendants’ counsel. But it is claimed that the mateship, as matter of law, was a deviation from the voyage insured, and that the judge ought so to have advised the jury.

To establish a deviation, the fact must appear, that the risks insured against, were increased or varied without necessity or reasonable cause. This, like other facts, is to be drawn from the evidence. Where the evidence is all on one side, or where the point depends upon the construction of the policy, the judge should undoubtedly determine whether the deviation be proved. Thus, if the policy were on a voyage from New York to Liverpool, and it were proved that the vessel, on leaving this port, sailed direct to Madeira, without any necessity or reasonable cause, the judge in an action on the policy would be bound to instruct the jury that there was a deviation. But when, as in this case, the fact whether the risk was increased or altered, depends on a variety of circumstances, peculiar to the pursuit in which the vessel was engaged, and the evidence, to say the least of it, is not decisive to prove the fact; the decision of the question belongs to the jury, and not to the judge. The course pursued at the trial, in Thorndike v. Boardman, 4 Pick. 471, illustrates and sustains our position. In Berman v. Woodbridge, Dougl. 781, 783, 788, Lord Mansfield left it to the jury to say, (on the testimony of the only witness examined.) whether the deviation there in question was wilful or necessary. The defendants’ counsel relied very strongly on the case of Tennant v. Henderson, 1 Dow’s P. C. 324, as establishing that the mating was of itself, in law, a. deviation fatal to the policy. That was a suit in the Court of Session in Scotland, on an insurance effected on the ship Imperial and her cargo on a voyage to the coast of Africa and the African Islands, and during her stay and trade there, and from thence back to Liverpool, with liberty to exchange goods with other ships.

Soon after Iter arrival on the west coast, the Imperial met the George, another ship belonging to the same owners, which had been on the ciav-t two or three months ; put onboard 1 lie George the goods she had then collected in her trading, and received from the George all that remained of the outward cargo and •'llperiluous -.tores of the latter; the object being, by means of the overdoes of both ships, to despatch the George with a full cargo, before the Imperial began to trade on her own account. This mutual orcouihined trailing was not communicated to the underwriters. The Imperial was captured by a French privateer; and I he underwriters, in their defence, contended that the matters stated, c.-tablislied a concealment of a material tact, since the risk was varied and increased by the consequent protracted stay of the ship in the pe-tilential climate of the west coast of Africa. To rebut tin's defence, the Lord Ordinary allowed the assured to go into proof that by the understanding of those engaged in the African trade, liberty to exchange goods with other ships, imported a liberty not only to barter and sell, but to aid another ship in providing her speedily with a homeward cargo, without regard to any proportion between the goods so delivered or received. The proof did not establish the usage to the satisfaction of the judge, who held that the subserviency of the Imperial to the George, prolonged her stay and increased the risk ; and he pronounced a decree for the underwriters. On an appeal to the House of Lords it was held that the decree was right, and it was affirmed.

It is to be observed, that in 1809, when the case of Tennant v. Henderson was pending, there was no trial by jury in the court of session, and the court passed upon both the law and the fact. The case is, therefore, no authority in support of the position that the mating of two whaling vessels is of itself a deviation, as matter of law.

In Hartley v. Buggin, 3 Dougl. 39, also an action on an insurance upon a ship in the African trade, it was proved that she had been used as a receiving or factory ship on the coast; and it was left to the jury to say, whether the use thus made of the ship, had for its object the voyage insured. If it had not, there was a deviation, her stay being protracted by the use thus made of her. The ruling of the judge in the ease at bar, was more favorable than this to the defendants; because it left the jury to find a change of the risk in other modes, as well as by the longer stay of the vessel.

Upon the whole, we are satisfied that no error was committed on the trial, and the motion for a new trial must be denied.


source: Caselaw Access Project

author: Oakley, Ch. J.

license: Public Domain

text:
    Minturn & Co. v. Allen & Poillon.
    The statute prohibiting auctioneers and others from selling at private sale any goods liable to auction duties, on the day and at the place where the public auctions are held, was intended to protect the state in the payment of the duties, and does nol invalidate a private sale, of such goods, which were on the same day subsequently sold at auction pursuant to a previous advertisement.
    In a suit by an auctioneer, to recover the price of goods sold at auction, where it is set up as a defence that the owner of the goods bid without the knowledge of the purchaser, it is a question of fact to be submitted to the jury on tho testimony, whether the sale was fair, or whether it was a fraud or an imposition on the other bidders.
    (Before Oakley, Ch. J., and Vanberfoei, and Sanbford, J. J.)
    May 26 ;
    June 23, 1849.
    This was an action of assumpsit, brought to recover the price or value of a quantity of lemons.
    At the trial before the Chief Justice in January, 1849, the plaintiffs proved that they were auctioneers, and as such, on the eleventh clay of May, 1848, sold at public auction, in the city of New York, to the defendants, 884 boxes of lemons, at the price of twenty-eight shillings and six pence per box. That such lemons were actually delivered to the defendants on the thirteenth clay of May, 1848, and about the same time a bill thereof was rendered by the plaintiffs in their names to the defendants. The sale was advertised a clay or two. The lemons came in the schooner Gladiator, from a foreign port, consigned to Mr. Sus. He was present at the sale. One gentleman asked the auctioneer whether the cargo had not heen previously sold at private sale, who then asked Mr. Sus whether it was so, and Mr. Sus said, The plaintitts’ counsel 1heu nuule the following admission in writing, viz.
    "The plaintiff- admit that the auction sale took place <>n the wharf, alongside of the vessel in which the goods were imported. Mr. Hus, the importer, on the morning of the sale, and before the sale, sold the goods at private sale to Miller & Par-oils, the parties being-on hoard the vessel. At the time of the public and pm ate sale, the bulk of the goods were on hoard of the vessel, and samples thereof lay upon the wharf alongside of the vessel. Tlie goods were previously advertised for sale at auction, at pier No. d N>rth Jtivcr, for that day at 11 o'clock, when the sale in fact took place."
    It further appeared that the lemons were sold at such private sale by Sits to Miller & Parsons, at the price of three dollars per box. The entire cargo was sold at that auction sale, consisting of Togo boxes of oranges, and 1810 boxes of lemons.
    The defendants proved that Miller & Parsons were, present at the public sale. Several v\ itnesses for the defendants testified that Miller bid on the, lemons ottered, on two or three dilferent occasions. The auctioneer testified that he did not take his bid, and thinks that lie did not bid. P>oth M. A l. were present when the auctioneer made the announcement that the goods had not been sold at private sale. Several witnesses for the plaintiffs, who were bidders at the sale, testified that they did not see or hear Miller bid. The lemons sold to others at the same price bid by the defendants. There was evidence that they were worth that price on the day of sale, and twelve da\s after-wards lemons sold at auction for twenty-nine shillings and six pence per box. In the fore part of May, lemons were worth from twenty-one shillings to twenty-two shillings and six pence per box. Two or three weeks after the .pale, the auctioneer paid to the state the prescribed auction duties on the entire sale.
    The defendants called on the auctioneers, and made a tender for the, lemons at three dollars a box. The defendants proved that one of the plaintiffs, (whose names were used in the suit for the benefit of tbe owners of the lemons sold,) said when the tender was made, that it was a fraudulent transaction, and he would wash his bands of it; but that he had no authority to receive less than the whole sum.
    There was a large number of bidders and purchasers at the sale of the oranges and lemons.
    On the testimony being closed, the chief justice decided that the private sale by Sus to Miller & Parsons, constituted no defence to the action, if the auction sale were in other respects a fair sale of the lemons; and he submitted to the jury the following questions : — First, Was the sale at auction a fair sale? Second, If not, what was the fair market value of the lemons, at the time of the auction sale 1

    To this charge of the judge, the counsel for the defendants excepted. The jury answered the first question in the affirmative, and found a verdict for the plaintiffs for $3291 09 ; being the amount of the defendants’ bid, with interest.

      J. Leverideje and J. W. C. Le-veridge, for the defendants.

      A. Il'ilton and <7. O Conor, for the plaintiffs.
   By the Couet.

Oakley, Ch. J.

The first objection to the recovery is, that there was a private sale of the lemons in question, on the same day and at the same place where the public auction was held, and that therefore the sale at auction was illegal. It would require a pretty strong provision of law, to warrant a court in deciding that a sale under such circumstances would be so far invalid, as to enable the purchaser at the auction to keep the property without paying for it.

The statute is as follows: — “No auctioneer, on the day and at the place where his public auction shall be held, nor any person whatever, on the same day and at the same place, shall sell at private sale any goods or effects liable to auction duties ; and every person who shall violate this provision, shall forfeit a sum equal to the price for which, sucli goods shall have been sold.” (1 R. S. 532, § 25.) The lemons were subject to duty by the statute, when sold at public auction. We have considered the section quoted, and think it was intended merely to secure the slate the payment of the duties imposed on sales ar auction. It ¾» iuleiided to prevent auctioneers or owners of such poods, from bringing together a mass of people, attracted In the advertisement of an auction, and aider fixing a price, to sell the whole or the greater part of the goods at private sale, and thus to made the payment of the auction duty. Here the whole property was sold as advertised, and the duty paid t>> the state. The private sale made by the owner before the sale, to Miller & Parsons, was not within the mischief to remedy which the statute was made, nor within its object or purpose, and therefore it does not come within its provision.

The other ground upon which the defendanls seek to set aside the \erdict, is the bid alleged to June been made by Miller tP Famous, after they bought of Hus, and during the sale at auction. It is said this was puffing the goods, and was a fraud on the defendants and on the other bidders, and that it renders the sale void. The judge, at the trial, left it to the jury to say upon the evidence whether the auction saie was a fair sale, and if not, to say what was the fair market value of the lemons. The jury found that the sale at auction was a fair .-ale. It is now contended that the bare fact that die owners were bidding at the sale, and that the purchasers were ignorant of their interest at the time, in judgment of Jaw constituted a fraud, and rendered the sale illegal.

The principles applicable to the subject, and the authorities, are collected in 2 Kent’s Comm. 537, etc. If is true the adjudged eases are not all consistent with each other, or entirely clear; but they show, in our opinion, that the true inquiry in each case is whether the sale was fair or nog Tin owner of property exposed for sale at auction, is at lilwrit 1-> bid, if his intention to bid is made known ; or he mas put it up at an upset price. If he bid privately, it is not n ce-sarih a baud. Thy whole question is then to bo submitted as munvr oj fact, on all the circumstances, whether the sale that en-ued was lair, or whether it was a fraud or an imposition on the otic r bidders. The jury here have negatived the fraud. We think the- question was properly submitted to them, and that their verdict was quite right upon the evidence.

Motion for new trial denied,.


text:
    Read & Hoppock v. the Mutual Safety Insurance Company.
    It is no defence to an action for a partial loss on a policy of marine insurance* that the expense of the repairs made* (for the amount of which the loss is claimed*) was defrayed by a loan made by the correspondent of the owner, on a bot-tomry of the vessel, and that the bottomry loan was realized by such correspondent after the subsequent total loss of the vessel, out of an insurance effected by him on bis bottomry interest, and no part of the loan was ever paid by the owner.
    To the extent of a bottomry outstanding on a vessel, (there being no personal liability of the owner for such bottomry.) the owner has not an insurable interest.
    After the making of a time policy of insurance on a brig* in which she was valued, the master executed, a valid bottomry bond, which was outstanding when the brig was lost. Held, that by the bottomry, the interest of the insured to that extent ceased ; and that in an action for the loss* the valuation must be opened and reduced accordingly.
    Where a defendant pays money into court, applying a specified portion to one count* and another portion, to another count, each count claiming a distinct cause of action, and the plaintiff takes the sums paid, though not in satisfaction ; the court* on its subsequently appearing that the defendant paid more on the second count than he was liable to pay, cannot change its application, and apply the surplus on the other count.
    (Before Oakley, Cíl J., and Vanderpoeí. and Sandford, J. J.)
    January 25; and re-argued May 25, 26, 1849.
    Decided June 30, 1849.
    Assumpsit on a policy of marine insurance, by which the defendants insured the brig Joseph Atkins, for one year from October 24, 1845, valued in the policy at the sum insured, viz, $4500. The brig sailed from New York for Matanzas in July, 1846, struck on a reef of rocks near Cardenas, and reached Matanzas in a damaged state. On a survey regularly had, it was decided to be necessary to repair her there. Repairs were accordingly made, at an expense of $3461. 53. Brake, Brothers & Co., merchants, at Matanzas, the correspondents of the plaintiffs, paid for these repairs, and applied towards them $1143 97, belonging to the plaintiffs, which was in their hands. For the residue of their advance, $1717 56, the master, on the 18th of September, 1846, executed to them a bottomry bond on the brig, at ten per cent, interest, payable in ten days after her safe arrival in the port of New York. There was no personal liability fur the money advanced, assumed in the bond by the master or owners.
    The brig sailed from Matanzas for New York, September 20th, 1845, with a cargo. She was compelled by liad weather to put into Savannah on the 29th of September, to repair, and was there repaired at an expense of $85 bib She sailed from Savannah on the 5th of (>etuber, in good condition, but was totally lost in a severe storm, on the beach just south >f Cape 1J alt eras, on the 13th of October. The plaintiffs abandoned the brig,and claimed for a total loss November 5th, 1846. A statement of the partial loss at Matanzas was made up and presented to the insurers on the 12th November, 1845, amounting, after the deduction of one third new for old, to 82914 13. The Jit-sf count of the declaration claimed for this partial loss: tile -eeoixl count set forth the di-aster and repairs at Savannah, and the total loss, and claimed the entire sum insured. Tim dcf-ndants pleaded the general issue and payment. The suit was commenced in Decent her, 1840. Before pleading, and in Jime, 1*47, the defendants paid into court on the first count, $1180; and on the second count, ⅜4,100. The plaintiffs declined to accept the-e sums in full of their claim.
    It appeared on the trial that the plaintiffs claimed, under their first count, $2,014 13, as the partial loss ; and under their sec:,nd count 1 Ley claimed $S0, partial loss at Savannah; and $4,388 -j7 for the total L>ss of the vessel, being the balance, after crediting a trifling sum realized by the master from the wreck.
    It also appeared that Drake, Brothers & Co, insured in a company at 11 a\ ana their bottomry interest in the brig, and in February. F'47, (ho plaintiffs, at their reipiest, furnished to them (he propel preliminary proofs and documents to claim from that company the amount of the insurance. The plaintiffs have iiou paid to Drake, Brothers <te Co, any part of the bottomry bond. A verdict was taken for the plaintiffs, subject to the opt inion of the court.
    rpon the argument of the case in January term, 1849, by F. B. Cutting and (J. TT. Band fond, for the plaintiffs, and T. Stdgwíok, for the defendants, the defendants’ principal reliance was on the point that the moneys paid by Drake, Brothers & Co. towards the repairs, having been re-paid to them by the insurers at Havana, and never paid by the plaintiffs, the latter had no claim for that amount; and the sums paid into court were a complete and full, indemnity for all their actual loss and damage.
    The court, on considering the subject, directed a re-argument on the question, whether to the extent of the bottomry bond placed on the vessel at Matanzas, the plaintiffs continued to have an insurable interest, or could recover as for a total loss for so much of the value of the vessel as was represented by that bond. The cause was accordingly heard a second time.

      F. B. Gutting, for the plaintiffs.
    The whole controversy in the case has been in regard to the partial loss, in respect to which the bottomry v?as given, and the insurers contended they were liable, only for the balance paid for the repairs, less the amount raised by the bottomry. They brought into court what they supposed was the whole total loss. It has been taken out of court by the plaintiffs, and there is no question left. The money has been paid, and they must sue for it if they claim to have it back.

      T. Sedgwick, for the defendants,
    said the court can make such order as may be just under the circumstances. It may* apply the money paid into court to either count of the declaration. Neither of the counts was satisfied by the payment. It is a technical matter altogether, and wholly under the control of the court.
    The C-oukt said they could not change the application of the money paid into court on the respective counts, and received by the plaintiffs. That matter had passed beyond their control. But the question was open on the second count, as to the sum claimed by the plaintiffs beyond the four thousand one hundred dollars paid into court on that count.

      F. H. Cutting proceeded to the question ordered to be argued.

      Tliis is a valued policy, and no partial loss or average is payable, which amounts to less than live per cent. Can value agreed upon be opened! It’ so, the operation of the rule must be, mutual. If opened to show a less value, why may not the assured show an increased value !
    The object of valuing tlie interest is to shut out all questions as to actual value, in the absence of fraud. Suppose there were a mortgage on this brig, and then five per cent, loss on the balance of value beyond the mortgage, could the mortgage lie shown so as to enable the insured to recover lor a partial loss !
    There are liens on ships for repairs, wages, port-charges, and the like. Are they to be deducted on a valued policy! The case mentioned by the court in 2 Caines lu in the supreme court holds no such doctrine. There the bottomry was on the vessel when the plaintiff bought her. It was not decided there that there was no insurable interest, but the contrary. (S. C. 2 C. C. in E. 110.) We cannot avoid investigating all liens, if the doctrine he admitted; and it will produce embarrassments and inexplicable confusion.
    The silence of the books, as to liens being deducted, is a strong argument against such a principle. In 3 Mason 429, 436-7, Humphrey v. Union, Insurance Co., Story, J., assumes there would be an insurable interest in such a case by way of illustration.
    What effect will a subsequent lien have on such an’ agreed valuation!
    (Chief Justice. — What, if after the valuation, the insured sell half the vessel!)
    That would take away half his insurable interest, because the policy requires proof of interest. It would not affect the case if the-purchase money were unpaid.
    The plaintiffs were owners of the brig, as much as they ever were, notwithstanding the bottomry. A second insurance is very analogous in principle. The first insurer derives no benefit from it, unless be stipulates for it in Iris contract or policy. We could not obtain any diminution of premium by reason of the bottomry. Such a doctrine could not be earned out.

    As to the effect of the valuation in the policy, I refer to Alsop
      v. Commercial Insurance Co., 1 Simmer 451,463,469 ; Coolidge v. Gloucester Insurance Co., 15 Mass. 341; Patapsco Insurance Co. v. Colton, 3 Peters 232, 238 ; Watson, v. Insurance Co. of Worth America, 3 Wash. C. C. E. 1, in which the valuation was opened entirely ; and Bonsfield v. .Barnes, 4 Campb. 228. So goods entered subject to drawback, Gain v. Broome, 1 John. Cas. 122; Mint-urn v. Columbian Insurance Co., 10 Johns. 15, 78. Kmny v. Clarkson, 1 John. E. 386, is an authority directly in our favor. And see 2 Phill. on Insurance 43. Also 1 E. S. 662, as to wagering policies. Except for the statute in England, the owner would recover there the full value, although the ship were bottomed. 2 Park on Insurance 869, 871 ; 2 Phill. oil Insurance 625.

      I Sedgwick, for the defendants.
    I. The plaintiffs can only have indemnity for actual damage sustained. This is the general rule in all actions at law, and is eminently true in cases of insurance. (Sedgwick on Damages, 53, 232, 311.)
    The money paid into court, has reimbursed the plaintiffs their entire loss, with the exception of the one third new for old, which one third, in judgment of law, is not a loss.
    II. The moneys paid by Drake, Brothers & Co., towards the ivpfor- uf the brig, have been repaid to them by the Havana Imiinmee Company, on settling the bottomry policy. Consequently they can have no claim on the plaintiffs for that sum ; and the effort here is to make the defendants in this suit pay what the plaintiffs have not lost, and what they cannot by possibility be obliged to pay. It does not therefore come within the principle of those cases where the plaintiff has been allowed to recover for losses winch lie had not in fact sustained, but for which he was legally liable. (Wolfe v. Howard Insurance Co., 1 Sand. S. C. It. 124; Hone v. Mutual Safety Go., Ibid. 137.)
    III. The facts present a case of recoupment, in the original sense of the term. The plaintiff does not prove the loss that he alleges. (Sedgw. on Damages, 457 et seq.; Shannon v. Corn-stock, 21 Wend. 457 ; Hecksher v. McCrea, 24 Ibid. 304; God-sail v. Bollero, 9 East 72, which is perfectly decisive in principle ; Pullen v. Stamforth, 11 East 232; ¿Etna Ins. Co. v. Tyler, 16 Wend, 385.)

      As to the plaintiff \s interest.

    IT. It is settled, as well in Europe as here, that the borrower on bottomry has no insurable interest, except for the surplus over his loan. (1 Phill. on Ins. 113; 1 Arnonld on Ins. 244; Williams v. Smith. 2 C. Gas. in E. 110.)
    V. This is so on principle. An interest at the time of the loss is indispensable. It is here expressly averred. But it is wholly immaterial to the bottomry borrower, so far as his loan goes, whether the vessel be lost or not. If she is lost, the debt is can-celled. If she arrives, she must pay the debt. Either way he has no interest in the object assured. (1 Phill. on Ins. 6T, 72 ; 2 Ibid. 601 ; 1 Rev. Stat. 662; 2 Drier on Ins. 6.)
    VI. This has nothing to do with the question of valuation. Whether a policy is valued or not, the plaintiff must prove his interest at risk, and the defendants are at liberty to show that the actual interest was in any way reduced subsequent to the valuation. (2 Phill. on Ins. 12, 601; 1 Ibid. 67, 72, 75, 77; Watson v. Ins. Co. of JSh. A.. 3 Wash. C. C. R. 1; Wolcott v. Eagle Ins. Co., 4 Pick. 429 ; Forbes v. Asp-inwall, 13 East 328 ; Alsop v. Comm. Ins. Co., 1 Sunm. 451.)
    VII. There is no analogy in regard to the question of interest, between a bottomry bond and a mortgage or other liens. The nature of the incumbrance is entirely different,
    VIII. The case comes within the equity of the clauses as to double insurance. Here there has been in fact a second assurance and payment by the second assurers. It is not possible that the first insurers are still to be held liable. All the analogies of the doctrine of recoupment forbid it, (2 Phill. on Ins.. 56, On; 3 Wash. C. C. R. 1; Godi.es v. London ,.4<ss. Cm. 1 Burr. 4s9 : Thurston v. Koch, 4 Dallas 348, and App.; Park on Tus. 374, 375.)
    By the bottomry, the plaintiffs have obtained the thing insured. Shall they have a second satisfaction ? If interest is to be shown, and actual damages proved, they cannot recover upon either count.

      Cutting, in reply.
    The deduction claimed, cannot be on the principle that the plaintiff’s interest was divested by the bottomry.
    If they had put a mortgage with a bond on the vessel, and then she had been lost, that would not have divested the insurable interest, and we could recover the whole amount.
    So the lien of sailors’ wages does not divest the interest.
    So a bottomry to redeem from capture, which was a peril not insured against, arid then the vessel was lost, So of a lien for collision.
    The defence can only be maintained on the ground that the underwriters are to have the benefit of the annihilation of the debt; thus making the saving by the money received on the bottomry lost, equivalent to a salvage to the assurers on the vessel.
    IIow can there be a recoupment out of a contract to which the defendants were neither a party nor privy ?
    To recoup they should be able to sue or maintain an action for what is sought to be recouped.
    1 Arnould 207, on bottomry, etc., shows that in the passage cited he had reference to the Stat. Geo. II.
   By the Court.

Oakley, Ch. J.

The court have considered this case with some care, and now proceed briefly to state their views. The case was argued on one question, which was presented at that time as the only one of any materiality involved in the case, and it was fully discussed by the counsel on that point, and considered by the court, In the course of our examination, it occurred to us there was a point involved which had not been presented, and we directed the matter to be spoken to again. It was re-argued, and it now comes up for final judgment.

The case was this : It was a time policy of insurance for one year on the brig Joseph Atkins, owned by Read & Hoppock. The brig; was valued at $4500. She proceeded from this port, and in the vicinity of the island of Cuba met with some disaster and put into Matanzas, arriving there in a disabled condition. A survey was called, it was deemed proper to repair the vessel, and the captain proceeded to repair. The house of Drake, Brothers & Co. of that place, were the correspondents of the owners, and had a certain amount of funds in their hands belonging to the plaintiffs, which were applied by the captain towards the repairs of the ship. The funds were not sufficient; and in order to raise the necessary amount, the captain borrowed of this house $1700, and in security therefor executed a bottomry bond on the brig, payable ten days after the arrival of the vessel at New York. She took on board a largo and set sail for New York. On the passage she received some damage, and put into Savannah, where she had some repairs, but to a small amount, in regard to which there is no question. Being refitted, she proceeded for New York, but off Cape Ilatteras was totally lost, Drake, Brothers & Co. insured at Havana their bottomry interest. It was admitted on the argument, that the house of Drake, Brothers & Co. received the amount of their bottomry interest, from the insurance company at Havana, some months after the suit was brought.

The plaintiffs in their declaration have two counts; one for the partial loss at Matanzas, and the second for a total loss, arising out of the final destruction of the vessel.

The defendants paid into court on the first count $1180, which was the sum remaining due for the partial loss after applying the proceeds received by plaintiffs on the bottomry bond; and on the second count $4100, for the total loss. The latter sum fell short between $400 and $500 of the actual amount of loss ; and in that state of the ease the matter was brought to trial.

Two questions have arisen in the case. First, have the plaintiffs a right to recover on the first count, on the ground of a partial loss ; and, second, what sum are they entitled to recover on the ground of a total loss ?

On the part of the defendants it is attempted to avail themselves of the money received through the loan on the bottomry bond by Drake, Brothers & Go., because, as the vessel was totally lost, and Read & Iioppock discharged from their personal ■responsibility for the debt of the vessel, they had not lost the money, and had no right to claim of the defendants for that amount.

On the other hand, it is contended that the insurers have no connexion whatever with any account of Read & Hoppock as respects the raising of funds for repairing the vessel, and it was no matter to them how that money was acquired, whether by mortgaging the ship, or in any other way; that the obligation of the company is to pay the loss, and they cannot avail themselves of the state of facts set up in respect of the insurance on the bottomry.

¥e think the views o& the defendants in this particular are not correct. They cannot avail themselves of this as a defence to the payment for a partial loss.

The defendants’ counsel pressed very much on the court, in the argument, the case of Godsall v. Boldero (9 East 72), as containing, what he says is a principle which goes the whole length of sustaining Iris views. We have examined that case, (as it-was the only case much relied on as to this point.) with some care, to see in what manner the question arose and what principle was established by it. That was an insurance on the life of Mr. Pitt, formerly prime minister of England, who was indebted to the plaintiff; the plaintiff having thereby an interest in the life of Mr. Pitt, of course had a right to insure it, and did so. Mr. Pitt died. The Parliament of England determined to pay his debts, and made a large appropriation for that purpose, which was placed in the hands of his executors. They paid the plaintiff’s debt, notwithstanding which he brought the action against the insurance company on the life policy, under the idea that his interest in the life of Mr. Pitt was something distinct and separate from the debt, and did not depend upon the debt; that the contract was with the insurance company, and that they must pay him accordingly. On looking at the pleadings, it appears that the plea on which the verdict was entered, expressly set up the fact, that the debt was the interest which the plaintiff had in the life of Mr. Pitt, and that the debt was paid by the executors before the suit. On that plea the parties went to trial. It was agreed the court should enter judgment as they might find the facts to be. The court ordered judgment for the defendant on the plea setting up the payment of the debt by the debtor, or which was the same thing, by his executors. The court said the whole object of the insurance was to indemnify the plaintiff; that he had been paid the debt by the executors of Mr. Pitt, and it was immaterial from what quarter the fund came, whether from parliament or any other way, for in either event the contingency liad been answered,

Now we do not consider that any principle is established by that case which will entitle these defendants to set up that the funds which had been appropriated for repairs, came from any quarter except from the plaintiffs themselves, or from funds furnished by their agent, and by them reimbursed. The-liability on the bottomry bond remained as to the vessel, and had she arrived, nobody contends that there would have been any question on the partial loss, because the borrowing of the money with or without security, could make no difference. We think the claim of the defendants, setting up this receipt of the money borrowed on the bottomry bond as discharging the company from paying the amount of the partial loss, cannot be sustained, and that the plaintiff is entitled to judgment on the first count for the entire partial loss.

The next question is whether in respect of the total loss there can be any reduction made on the ground of the bottomry. That was the question which the court directed to be argued on the second occasion. The result of our deliberations is, that under the circumstances, the bottomry bond must go in diminution of the plaintiffs’ claim on the policy for the total loss of the vessel. The principle is well established in this state, by a decision in the court of errors, that -where a vessel is under bottomry at the time of the insurance, the owners have to that extent no insurable interest in the vessel. (Smith v. Williams, 2 Caines’ Cas. in Error 110 ; 1 Phill. on Ins. 113.) The reason is obvious. The vessel was under bottomry for its full value. In case of loss, the insured, if paid, would receive the value, and yet had nothing at hftzard. In such a case, if she arrive safe, he has the vessel and has to pay the bottomry bond ; if the vessel is lost, he is discharged from the bottomry bond, and has received the money advanced upon it. The party, in such a case, has no interest that lie can insure. In Watson v. Insurance Co. of Worth America, 3 Wash. C. C. R. I., the same principle was applied. The bottomry bond was for part of the value of the vessel. There was a valued policy, the vessel was lost, and the question was, could the valuation be opened to let in the claim of the insurance company, so that the bottomry bond previously made on the vessel, though without the knowledge of the party, could be deducted from the amount. Judge Washington held that it could be done. He opened the policy, and said it was propei1 under the circumstances, because the party ought to have no more than a just indemnity. The case is not fully stated, but it is evident that such was the principle.

The case in our own courts is decisive. Assuming the principle tu be established that where there is a bottomry bond at the time of the insurance, the bottomry shall be in diminution of the value of the interest of the assured, to the extent of the bottomry, thus extinguishing the interest wholly or in part, we think it necessarily follows that the execution of the bot-tomry bond after insurance is effected, operates on the interest of the assured in the same way. If a loss take place, the borrower is discharged, and his interest is extinguished to that exteut. It is admitted that, after effecting insurance to the value of the ship, if the owner should sell part of the vessel he cannot recover beyond his actual interest. We see no reason why this conditional transfer should not operate in the same way. It is exact justice, and prevents more than a just indemnity. It is an act of the plaintiffs, by which their interest in the vessel is in that way paid for and extinguished. They no longer o wned anything in that ship except what remained beyond, the bottomry bond.

We think, therefore, on the last count of the declaration, the plaintiffs could not have recovered anything except what remained over the value of the bottomry bond. The defendants having paid money into court, by which they have admitted the right of the plaintiffs to recover to that extent, we consider we cannot interfere with that proceeding; but they cannot have judgment beyond the amount so paid in.

These are the general views we have taken of the case. Wc are not aware that the question has ever been raised before, but adopting the principle established in Smith v. Williams, we think there is no doubt on the subject.

Judgment for the plaintiff for the partial loss, less the sum paid into court on the first count. The plaintiffs are not entitled to recover for the total loss beyond the sum paid into court therefor.

       Although the insurers thus succeeded in Godsall v. Boldero, they paid to the plaintiff the amount of the insurance before they left the court ; probably not from any doubt as to sustaining the decision, but to maintain their reputation with the public. Ellis on Ins., 126, note e; 1 Phill. on Ins. 149.


author: By the Court.

text:
    Monteith v. Evans.
    Under the líen law of 1830, giving mechanics and laborers a lien upon buildings, the contractor disputing a lien notified to the owner, if unable to adjust the amount with the claimant, must tender to him a written agreement to submit to arbitration. A verbal offer to arbitrate will not suffice.
    If the lien creditor, in a suit against the owner, rely exclusively on the contractor’s having omitted to adjust or arbitrate within the time prescribed, the state of the accounts between the lien creditor and the contractor is of no importance. Whatever that may be, the owner is liable to pay the claim, if such omission be proved.
    (Before Oakley, Cii. J., and Vanderpoel and SaNdford, J. J.)
    May 22 ;
    June 30, 1849.
    This was an action under the lien law of 1830, amended in 1832, to recover for mason work and materials done and provided by the plaintiff, for and towards the erecting and finishing a house in Clark street in the city of New York, built for the defendant by one Thomas, under a contract in writing. The complaint, after stating these facts, and that there was $1T5 due the plaintiff from Thomas, set forth that, on the 28th July, 1848, he served on the defendant an attested account thereof, with notice of the amount due; that there was then due, or there shortly became due, from the defendant to Thomas under the written contract, sufficient to pay the attested account; that more than ten days have elapsed, and the contractor has not disputed the plaintiff’s claim, or adjusted it, or put it to arbitration according to the statute, or paid the same.
    The answer set forth that the plaintiff had not performed his contract with Thomas, he had been overpaid by Thomas, and owed the latter when the notice of lien was served. That the defendant, on the 4th of August, 1848, delivered the, attested account and papers served on him to Thomas, who, on the 7th of August, agreed with the plaintiff to submit his claim to arbitration, according to the statute, but plaintiff failed to bring his arbitrator at the time appointed. Thomas again agreed with the plaintiff to arbitrate on the 8th of August, and the latter again failed to attend with his arbitrator.
    At the trial before Sandfobd, J., in February, 1849, the defendant offered to prove that the plaintiff did not complete his contract with Thomas, that the payment claimed was not due from the latter, and that he owed Thomas, &e. This was objected to by the plaintiff’s counsel, and excluded by the judge.
    Thomas testified for the defendant, that he received the lien papers from the latter on the 4th of August, and on the 5th served him with a notice that he, the witness, intended to dispute the plaintiff’s claim. On the 7th of August lie agreed with the plaintiff to settle the matter by arbitrators, and fixed the place where they were to meet on the same day. Witness attended with Ms arbitrator, but the plaintiff did not attend. A like agreement and failure occurred on the 8th of August. On the 28th of August, a like agreement was made, and on the plaintiff’s omitting to attend, the witness tendered to him a written agreement to arbitrate the matter, executed by himself, but the plaintiff would not sign it. All the prior agreements were verbal.
    There was some evidence on the part of the plaintiff, contradictory of Thomas’s statements, relative to the agreements to arbitrate, and the failures to comply by the plaintiff.
    The judge charged the jury, that Thomas was bound, within, ten days after he gave the defendant the notice that the plaintiff’s claim was disputed, to adjust the matter either amicably or by arbitration with the plaintiff. That his first efforts to arbitrate, on the 7th and 8th of August, did not fulfil the requirements of the statute, because the agreement to arbitrate should be in writing, and he offered no %ritten agreement to that effect.
    That the plaintiff, however, could waive the statute limitation and arbitrate effectually after the ten days had elapsed. He thereupon left it to the jury to decide whether the plaintiff consented to arbitrate cm the 28th of August, intending that it should have the same effect as if it had been agreed to within the ten days. If he did, and Thomas followed it up by tendering, within a reasonable time, the written agreement of that date to enter into arbitration, then the plaintiff could not recover. Otherwise their verdict must be for the plaintiff. The defendant excepted to the charge, and to the advei’se rulings during the trial, and the verdict being for the plaintiff, appealed from the judgment to the general term.

      J. Edgar, for the defendant.

      J. B. Sheys, for the plaintiff.
   By the Court.

As the plaintiff claimed to recover on the ground exclusively that Thomas, the contractor, had not agreed to arbitrate pursuant, to the statute, the actual state of the accounts between him and Thomas, was of no importance. If the plaintiff proved that, ground, the statute fixed the defendant’s liability, without any regard to the actual indebtedness.

The only other question in the case is on the instruction to the jury, that the statute creating the lien required the agreement to arbitrate to be in writing. ¥e think, on consideration, that this interpretation is correct. The contractor is to he the actor in the effort to adjust or arbitrate. This follows from his disputing the claim, of which the lien creditor is not otherwise informed, and from the necessity that one or the other shall be done within a limited time, at his peril. After failing to adjust amicably, he was to do all he could towards arbitrating; and he was to do it in such a mode as to protect the owner of the building in paying the contract price to him, in case the plaintiff asserting the lien should not unite in the arbitration. A verbal offer to arbitrate is not such a protection. We think the statute never intended that the right of the lien creditor on the one hand, of the contractor on the other, and of the owner, uncertain to whom he owed the obligation, should depend upon the recollection of an offer so liable to be either misunderstood, imperfectly remembered, or designedly perverted. Every other thing required is to be in writing; the account, the claim, copies thereof, the notices, and the award. We suppose the omission to express that the agreement should be in writing, was either because it was deemed to follow from the requirements just alluded to, or because the revised statutes already provided tor written arbitra-tions. However that may he, we think a sound construction of the act requires that the contractor shall tender to the lien creditor, a written agreement to submit the matter to arbitration, if he dispute the claim and it cannot be amicably adjusted.

Judgment at the special term affirmed.

       The illness of Sandford, J., to whom it was assigned to deliver the opinion of the court, prevented his drawing it up in form, and at the close of the June Term, the decision was announced in the brief manner here stated.
      The provisions of the act of 1830, which came in question, are as follows:— (Laws of 1830, p. 412.)
      ⅜ 1. Every mechanic, workman, or other person, doing or performing any work towards the erection, construction, or finishing of any building in the city of New York, erected under a contract in writing between the owner and builder, or other person, whether such work shall be performed as journeyman, laborer, cartmen, subcontractor, or otherwise, and whose demands for work and labor dono and performed towards the erection of such buildings has not been paid and satisfied, may deliver to the owner ol such building an attested account of the amount and value of the work and labor thus performed and remaining unpaid ; and thereupon such owner shall retain, out of his subsequent payments to the contractor, the amount of such work and labor, for the benefit of the person so performing the same.
      § 2. Whenever any account of labor performed on a building erected under a contract, in writing, as aforesaid, shall be placed in the hands of the owner of such building, or his authorized agent, it shall be the duty of such owner or agentto furnish his contractor with a copy of such papers, in order that if there shall be any disagreement. between such contractor and his creditor, they may, by amicable adjustment between themselves, or by arbitration, ascertain the true sum due ; and if the contractor shall not, within ten days after the receipt of such papers, give the owner written notice that he intends to dispute the claim ; or if, in ten days after giving such notice, he shall refuse or neglect to have the matter adjusted as aforesaid, he shall be considered as assenting to the demand, and the owner shall pay the same whan it becomes due.
      ⅜ 3. If any such contractor shall dispute the claim of his journeymen, or other persons, for work and labor performed as aforesaid, and if the matter cannot be adjusted amicably between themselves, it shall be submitted, on the agreement of the parties, to the arbitrament of three disinterested persons, one to be chosen by each of tire parties, and one by the two thus chosen ; and the decision in writing, of such three persons, or any two of them, shall be final and conclusive in the case submitted.
      The fourth section gives to the lien creditor an action against the owner, on the contractor failing to pay the amount ascertained, &e. The act of 1832 extended the lien to materials furnished and used in erecting buildings.