author: By the Court.

text:
    Elisha Ruckman v. The Merchants’ Louisville Insurance Company. Same v. same. Same v. same.
    When a vessel, disabled by the perils of the sea, is in a port of necessity, and it is ascertained that the costs of repairing, making the usual deduction, will exceed a moiety of her value, there is a constructive total loss, and the owner, if insured, by abandoning in due season, may demand its payment.
    The right to abandon, is, in this case, unqualified and absolute.
    But the right to abandon a vessel, thus disabled, is not confined to this case; for, although the estimated cost of her repairs may be less than half her value, yet if, by the exercise of that diligence, which the master and other agents of the owner are bound to use, she cannot be placed in a condition to perform her voyage, there is a constructive total loss, and a consequent right to abandon and claim its payment.
    Whether the impossibility, of putting the vessel in a condition to resume her voyage, arise from the want of necessary materials, or workmen, or of the necessary funds. is immaterial; where the impossibility is proved, the right to abandon equally attaches.
    The doctrine, that the want of the necessary funds, or credit, must be attributed to the negligence of the owner, and is, therefore, not a valid cause of abandonment, is confined to the cases in which the vessel is in a port of destination.
    The owner is not bound to provide the master with funds, or credits sufficient to meet the cost of repairs, when less than a moiety, in whatever port the vessel, by the perils of the voyage, may be driven.
    But the right to abandon, when founded on the inability of the master to procure the necessary means for repairing the vessel, is not, as when founded on the ascertained cost of repairs, unqualified and absolute. It depends upon the special circumstances of each case in which the question arises.
    When the master has not the necessary funds, and cannot raise them upon the credit of his owner or his own, it is his duty to raise them upon the security of the property in his charge—vessel, freight, or cargo.
    Nor are the diligence and efforts of the master, to procure the necessary means for repairing the vessel, to be confined to the port of necessity in which the vessel happens to be.
    When it appears that without any prejudicial delay, or an increase of expenses beyond a moiety, the want of materials or workmen could have been supplied from a neighboring port, or the necessary funds have been obtained by a communication with his owner or consignee, the breaking up of the voyage by the master will be deemed an unjustifiable act and a bar to the recovery of a total loss.
    The mere retardation of the voyage, for the purpose of making or procuring the means of making necessary repairs, is not a valid ground of abandonment; nor that, from the sale or damaged condition of the cargo, the voyage had ceased to be worth pursuing.
    Nor does the sale of the vessel, unless it is an act of barratry, or is justified by a necessity arising from the perils insured against, create a total loss.
    The true test of the right to abandon, in all cases where the vessel has been rendered innavigable by the perils insured against, except when the ascertained cost of repairs exceeds a moiety, is to be found in a proper answer to the question, whether a prudent owner, if on the spot and uninsured, in the exercise of a sound judgment, would have broken up the voyage or have elected to repair ? and it is upon this question that in all such cases the cause should be submitted to the jury.
    Where the cargo is sold to defray the costs of repairs, it is not a loss from the perils insured against, for which the insurers are liable.
    A total loss of freight, resulting from such a sale, is not recoverable.
    New trial ordered on vessel and cargo policies. Complaint on freight dismissed with costs.
    (Before Oakley, Oh. J., and Duek, J.)
    February, 1856.
    These actions were brought for the recovery of a total loss under three separate policies, made by the defendants on account of the plaintiff, upon the schooner Margaret Hopping, her cargo, and freight, on a voyage from New York to San Francisco.

      There were similar actions, also, upon separate policies, against the Union Mutual Ins. Co., and against the Astor Mutual Ins Co. By consent, these were to abide the decision of the above.
    The vessel was valued in all the policies at $12,000, the cargo at $6,000, and the freight at $5,000.
    The causes against the defendants were tried together, by consent, before Slosson, J., in March, 1854, and verdicts for the plaintiff taken in each for the total loss claimed, subject to the opinion of the court at General Term upon the questions of law arising upon the evidence, and also subject to adjustment by the court.
    The following are the material facts established by the evidence :—
    The schooner sailed from Hew York for San Francisco on the 21st of December, 1849, under the command of Captain Smith, with a sufficient crew, in good order, and well supplied for the voyage, and the plaintiff furnished the captain with funds to the amount of $250 in specie. Her cargo consisted of 17 frame houses, 32 tons of coal, 300 window sashes, provisions, groceries, dried apples, shingles, 16 tons lumber, a quantity of joists, plank, boards, laths, &e.—a part of which latter was carried on deck— and of otner articles specified in the bills of lading. It principally belonged to the plaintiff, his interest therein being of the value of $10,000.
    After leaving Hew York, the vessel encountered tempestuous weather, lost her jib-boom, fore-boom, some of her sails, and part of the deck load; and, in consequence, they bore up for Bio de Janeiro, and arrived there on the 15th February, 1850. Whilst there, a charge of mutinous conduct on the voyage was made by the master against the mate and some of the crew, and the mate, two seamen, and the cook, were discharged from the vessel, and .having reshipped other men in their places, and repaired damages, she sailed from Bio on the third day of March. She'-met with bad weather and very heavy seas, and was strained, and while laboring started the main chain plate bolts, received other damage, and made considerable water.
    The yellow fever broke out with great virulence. The master, mate, two of the crew, and a passenger, were attacked, and only three men were left to work the ship. It was determined to run into St. Catharine’s, that being the nearest port. The captain, one of the crew, and the passenger died.
    At St. Catharine’s, upon the application of Disney, the mate, a survey was held on the vessel, and the deck load was condemned. They commenced discharging from the hold on the 21st of March, and a portion of the cargo, being damaged, was sold. The proceeds of the sales of the cargo were applied to the expenses of the vessel. She was caulked and repaired after the cargo was discharged, and the hold was whitewashed.
    On the 27th April, 1850, Maxwell, Wright & Co., of Rio de Janeiro, who had acted as the agents of the schooner when in that port, having heard of these disasters, employed an American shipmaster, named William H. Dean, who was then in that port, to proceed to St. Catharine’s, and take charge of the schooner, as master, at the monthly wages of $126, and to proceed in her to San Francisco. The next day Captain Dean left Rio by a steamer, arrived at St. Catharine’s on the 2d of May, and took command of the schooner. The cargo, except the deck load, that had been condemned and sold, and that which was wrecked on board of the lighter, had been reloaded, and the hatches were down and caulked, at the time Captain Dean arrived. Some straggling parts of the frames of the houses, could not be got into the hold, in consequence of the stowage by the persons employed at St. Catharine’s being less compact than that in New York, and those parts of the cargo were, therefore, necessarily stowed on deck.
    The expenses at St. Catharine’s for pilotage, lighterage, provisions, &c., paid by Captain Dean, were over $2,800, and this amount he was enabled to pay by a letter of credit from Maxwell, Wright, & Co. In order to secure them, he executed a bottomry on the vessel-for $3,479.26, including marine interest.
    The vessel left St. Catharine’s on the 28th of May, 1850, and went to Santa Cruz, to take in water; and on the 7th June she sailed thence for San Francisco, with a crew of nine persons in all, with ample sails, rigging, ¿ce.
    The schooner encountered a continued series of storms and violent gales, was off Cape Horn nearly sixty days, struggling against very heavy weather; her sails were split, and some of them blown away; the running rigging was chafed very badly, and was almost unfit for use; the main-boom was broken, and the vessel was otherwise damaged. The crew were put on short allowance of water, and finally, on the sixty-second day after leaving St. Catharine’s, they were compelled to bear away for Valparaiso, by reason of loss of sails, of the boom, and the damage to the running rigging, &c. They continued their efforts to reach Valparaiso, enduring a succession of gales, and at last, on the 30th of September, and one hundred and fifteen days after sailing from Santa Cruz, they anchored in that port.
    Upon arrival, the captain noted a protest before the consul of the U. S., which was subsequently extended, and applied for a survey on the vessel. The consul, on the 1st October, appointed the captain of the port, and two American shipmasters, to hold the survey, and they found the sails badly split, and some of them unfit to be repaired; all the running rigging much worn, and in bad condition, and the main-boom sprung. They recommended the split and destroyed sails to be replaced with new, and the others to be repaired, the main and fore-lanyard sheets and down-hauls to be replaced with new rope, and the main-boom to be replaced with a new one.
    The schooner stood in need of a new foresail, new mainsail, new squaresail, all her old sails repaired, a new jib, a whole new set of running rigging, fore and aft, new lanyards, new main-boom, bulwarks to be repaired, and to be revictualled for the voyage; and without such repairs she was not in a seaworthy condition to proceed.
    The captain procured estimates of the cost of the repairs, and he ordered and received some new sails, a new main-boom, and the old sails and bulwarks were repaired. He and his consignees, Messrs. Lopez & Sartori, endeavored to raise the necessary funds, and to that end, on the 3d October, he advertised, in two daily newspapers, for a loan of $2,000 to $2,500 in bottomry. Having, as he supposed, no reason to doubt that the requisite means could be procured, he ordered the new sails. No offers of any kind were received in answer to his advertisement, and becoming apprehensive, at the end of three or four days, that he might not be able to raise funds, he abstained from ordering new running rigging, or from victualling the vessel.
    The captain then made personal application to Messrs. Alsóp & Co., and to another firm, for funds, offering to give his individual security, in addition to a bottomry, but they declined to make any loan.
    Finding it impossible, as he believed, to obtain the requisite means in any other way, on the 16th October he began to discharge the cargo, and gave public notice, by advertisements in the daily papers, of a sale of it at public auction, on a day and hour specified.
    The cargo was badly damaged. The frame buildings, when shipped in New York, were in bundles, each piece being marked and numbered, and each bundle hooped with iron. When the hatches were taken off, and the cargo landed at Valparaiso, it was found that the bundles had been cut adrift, the iron hoops being cut, many of the same parts were mixed up together in the same bundle; others of the parts had been lost in St. Catherine’s, and the houses were incomplete, so that, at the sale, the master could not warrant one of them. The other portions of the cargo were in a bad state, and did not correspond with the bills of lading in quantity. The cargo was not in a merchantable condition.
    The whole was sold, and produced the gross sum of $1,907.25, leaving, after deducting charges, $750.06*.
    This amount was insufficient to pay for the necessary repairs, supplies, and expenses, and to enable the vessel to quit the port; and the captain then endeavored, but without success, to obtain a freight for her, and an advance on the freight money. The parties having demands against the vessel became clamorous for payment, and threatened to proceed against her. Thus pressed by the creditors, the master proposed to his consignees, that they should pay the bills against the schooner, and that she should remain at Valparaiso until he had time to write to his owners, and obtain their instructions. They declined. Thus, it being impossible for the captain, as he believed, to make the repairs, and obtain the supplies necessary to render the vessel seaworthy, he again consulted with his consignees, and with the consul of the United States, and with Alsop & Co., and finally, having, as he thought, no alternative, and having an advantageous offer, he sold the vessel, by private sale, on the 15th November, to Messrs. Myers, Bland, & Co., for $9,000, leaving net $8,370, after paying the expenses of the sale. He also sold the chronometer and barometer for $200.

      The charges of the consul, including $611.89, paid to the crew, amounted to $1,322.29. The port charges, expenses of repairs, &c., in Valparaiso, amounted to $3,196.021, which was paid by the master .out of the proceeds of the vessel and cargo. He also deposited with Alsop & Co., $3,479.26, to cover the bottomry bond.
    The balance of the proceeds of sales, viz., $2,449.041, was paid by Lopez & Sartori to the master.
    He retained from this amount his demands against the vessel and cargo, and remitted the balance to the plaintiff in drafts, amounting to $1,354.50.
    Hew running rigging would have cost about $500, and the revictualling and port charges outward would have cost about $1,000.
    The cost of full repairs, port dues, &c., would have been from $8,600 to $3,000.
    Captain Dean could not have shipped the cargo to San Francisco by any other vessel without giving security for the payment of the freight, and that he was not able to do.
    The cargo, in its damaged condition, was not worth the expense of transhipping it to San Francisco.
    There was, besides, no small vessel at Valparaiso that could be chartered, and the cargo was not sufficient to have justified the expense of chartering a large vessel.
    The bottomry bond to Maxwell, Wright & Co. was paid in Hew York by the plaintiff, to Grinnell, Minturn & Co., the agents of the former, and it was cancelled. On the 20th of January, 1851, the plaintiff drew an order in favor of Messrs. Jones & Johnson, upon Alsop & Co., for $3,479.20, being the amount that Captain Dean had deposited with them, to secure the payment of the bottomry.
    The plaintiff subsequently compromised the bottomry bond, for the sum of $2,319.51, and received from Maxwell, Wright & Co. the sum the master had deposited with them. It was proved that a steamer left Valparaiso at the close of every month for Panama, and took a mail for Hew York, and that the master wrote, by her, to the plaintiff, which letter, if it arrived in the usual time, must have been received by the plaintiff early in December, 1852.

      In January, 1851, if not before, intelligence was received by the plaintiff, by a letter from the captain, of the disasters to the schooner, and the sale of the vessel and cargo.
    On the 8th of January, 1851, a notice of abandonment was delivered to the defendants, and preliminary proofs of loss and of interest were presented at the same time.
    The defendants offered to pay a partial loss.

      D. Lord and F. B. Cutting, for the plaintiff, made and argued the following points upon the vessel policy:
    I. The defendants undertook that the schooner Margaret Hopping should not be prevented, by any of the risks mentioned in the policy, from reaching San Francisco in good safety. By stress of weather, after leaving New York, she was damaged in sails, spars and rigging to an extent that rendered her unseaworthy, and incapable of prosecuting the voyage without repairs, and she was therefore compelled to abandon it, and to seek a port of necessity in order to refit and to obtain necessary supplies.
    II. Having reached Valparaiso and commenced the necessary repairs, the master was unable to raise funds upon the credit of his owner or of himself, or by bottomry of the vessel, or by any other means. The net proceeds of the cargo were wholly insufficient to pay the expenses of refitting, and he found that it was impracticable to restore the vessel to a seaworthy condition, or to leave Valparaiso, and he consequently had no alternative but to abandon the voyage and sell the vessel, rather than allow her to be proceeded against and sold by the creditors. This constitutes a total loss of the vessel. (2 Phil. on Ins. 254, § 354; id. § 1,519; id. 260, §§ 1,526, 1,528; American Ins. Co. v. Ogden, 15 Wend. 532; S. C. 20 Wend. 301.)
    III. The sale of the vessel was justified by necessity, was made in good faith, and transferred a valid title to the purchaser.
    IV. The assured was not bound to have had funds or credit at Valparaiso. The absence of funds at a port of necessity is not evidence of neglect, or of want of ordinary care and foresight. He had provided a good vessel, and had equipped her with ample sails, spars, &e., and with sufficient stores and supplies for a voyage from New York to San Francisco, together with $250 in specie. It was not intended or expected that she should go to Valparaiso, or into any port on the Pacific other than San Francisco. To require a ship-owner to meet the extraordinary expenditures of his vessel, not only at the port of destination, but at every port into which the vessel may be driven by stress of weather or other necessity, would be in the highest degree oppressive and impracticable, and opposed to the common usages of trade.
    V. Notice of abandonment, with full proof of loss and interest, was delivered to the underwriters without delay, after receiving the intelligence of the damage sustained by the schooner, and of the sale thereof by the master. (2 Phil. Ins. 368-9, 374.)
    No abandonment was in fact necessary. The assured is chargeable with, and gives credit for the proceeds of the sale received by him. (2 Phil. Ins. 238, § 1,497; Gordon v. Mass. F. & M. Ins. Co., 2 Pick R. 249; Patapsco Ins. Co. v. Southgate, 5 Peters’ R. 604; Charleston Ins. Co. v. Corner, 2 Gill. R. 410; Mutual Safety Co. v. Cohen, 3 id. 45.)
    VI. The receipt, by the assured, of the drafts endorsed to him by Captain Dean, amounting together to $1,354.50, was not, nor was his order in favor of Jones & Johnson, upon Alsop & Co., for $3,479.20, any waiver of the abandonment. It was his duty to collect and save as much as possible from the proceeds, and to apply them to the claim against the defendants. (2 Phil. Ins. 394; Brown v. Smith, 1 Dow. 349; Mitchell v. Edes, 1 Term R. 608; Roux v. Salvador, 3 Bing. N. C. 266; Pacific Ins. Co. v. Catlett, 4 Wend. 75.)
    VII. The plaintiff is entitled to judgment for the amount of the verdict, with interest. The bottomry bond, executed by the master in St. Catharine’s, in favor of Maxwell, Wright & Co., did not affect or impair the previous contract made by the plaintiff with the defendants, nor diminish his insurable interest in the vessel, nor give to the defendants the right to deduct the amount of the bond from his claim.
    The cases which treat bottomry bonds executed before the date of the policy, as in the nature of a prior assurance, do not apply.
    They also made and argued the following points, upon the freight and cargo policies:
    There was a total loss of freight.
    1. The Margaret Hopping was damaged by the perils of the seas, to an extent which rendered her incapable of carrying her cargo to its destination,- unless by making repairs and procuring supplies. For that purpose she put into Valparaiso, but the efforts of the master, and of his consignees, to raise the funds requisite to make the vessel seaworthy, were fruitless. He was unable to continue the voyage, and, being pressed for payment by the creditors, who threatened to proceed against the vessel, he had no alternative but to sell her. She was accordingly sold, and the voyage was abandoned, no freight being earned.
    2. The master was not able to earn any part of the freight, by transhipping the cargo, and carrying it to San Francisco in another vessel, (a.) He could not have chartered another vessel, without giving security for the payment of the freight, and that he was unable to do. (6.) There was no vessel of suitable size in Valparaiso to charter; and there was not sufficient cargo to justify the hiring of a large one. (c.) The cargo was badly damaged, much of it had been lost at St. Catharine’s; the frames of the houses were imperfect, by reason of the loss of many of the parts; and in other respects it was in an unmerchantable condition, and not worth the expense of transhipment. There was no alternative but to sell it, and terminate the adventure.
    3. The plaintiff is entitled to a judgment for a total loss of the freight, viz., $1,000, being the sum insured, with interest from the 9th of February, 1851.
    The plaintiff is entitled to recover' for a total loss of the cargo.
    I. The schooner Margaret Hopping was rendered incapable of performing the voyage to San Francisco, by reason of the injuries sustained by stress of weather; and the master, being unable to raise funds, could not repair or refit the vessel, so as to continue the voyage, and transport the cargo in her to its destination.
    H. There was no other conveyance that could have been procured to transport the cargo to San Francisco. Ho vessel could have been hired, without giving security to pay the freight, and that the master could not do. There was no small vessel at Valparaiso to be chartered, and there was not sufficient cargo to justify the expense of chartering a large one.
    IH. The cargo was greatly damaged by sea-water, and was much wetted and stained. The frame houses were scattered, many of the parts were missing, much of it had been lost at St. Catharine’s, it was in an unmerchantable condition, and damaged more than half of its value. It was not worth the expense of transhipment to San Francisco.
    IV. A sale of the cargo was necessary. There was no alternative. (Readwell v. Union Ins. Co., 6 Cow. 270, 2 Phil ins. 319; Hudson v. Harrison, 3 Bro. & B. 97.)
    V. Notice of abandonment, accompanied by preliminary proofs of loss and of interest, was delivered to the underwriters without delay, upon receiving intelligence of the disasters to the vessel and cargo, and the sale of both.
    The cargo having been sold, and the proceeds constituting a credit on the claim against the defendant, there was no need of any abandonment
    VI. The receipt, by the assured, of the drafts enclosed to him, by Captain Dean, if they included any part of the proceeds of the sale of the cargo, was not a waiver of the abandonment.
    VII. The plaintiff is entitled to judgment for the sum insured by the defendants, &c.., after allowing all just credits, according to the adjustment made by Henry W. Johnson, viz., $950.69, with interest from the 9th January, 1851.

      W. C Noyes, for the defendants, made and argued the following points:—
    I. The vessel had not sustained injury to more than half her value when she reached Valparaiso; the plaintiff cannot, therefore, recover for a total loss.
    II. The vessel was not lost to the plaintiff in consequence of any peril, covered by the policy, directly and immediately causing the loss; and without this, as a general rule, no recovery can be had for a total loss.
    III. The private sale of the vessel, by the master, did not create a total loss; it was without any pressing necessity to justify it; it was occasioned by the neglect of the plaintiff to provide adequate funds or credit for the voyage, by the haste and indiscretion of the master in selling so soon, and by the gross neglect of the plaintiff to furnish funds, after he knew of her condition, and his not informing the defendants, so that they could have relieved her, if he had threatened an abandonment. They could, and would have supplied her with funds to prosecute the voyage, if they had been frankly informed that any emergency existed requiring it.

      1. There was not that urgent necessity for a sale, which left the master no time to consult his principal; and neither the cargo nor the ship were perishable. (Center v. Am. Ins. Co. 4 Wend. 45, 52; Brig Sarah Ann, 2 Hare’s Am. L. C. 565, and note, 570; Donett v. Young, 1 Car. and M. 465; Young v. Turing, 2 Scott’s N. R. 752; Am. Ins. Co. v. Ogden, 20 Wend. 287; 1 Arnould on Ins. 189 to 195; 2 id. 1081, 2, 3; 2 Phil, on Ins. 3d ed. §§ 15, 65, p. 303, §§ 1569, 70, 1, 2, 3, pp. 305, 6; The Eliza Cornish, 17 Jurist, 738.) The vessel was safely in a foreign port, and the owner was actually communicated with, but concealed all he knew about her condition.
    2. It was caused by the omission of the plaintiff to provide funds and credit, which should have been provided; and although she was not in a port of destination, it was the duty of the owner to have provided her with funds or credit, for ordinary emergencies in a port of necessity. The sum provided was wholly inadequate. (Am. Ins. Co. v. Ogden, supra. Dissenting opinion of Judge Bronson, in same case, in Supreme Court, 15 Wend. 541. Van Buren v. Wilson, 9 Cow. 168, per Sutherland, J.; Moses v. Sun M. Ins. Co. 1 Duer, 159.)
    3. The master not being the agent of the defendants, but of the plaintiff only, there being no total loss and mo abandonment, should have communicated with him, and he, frankly with the defendants, so that they could have ¡relieved the vessel, and enabled her to pursue the voyage. The master was, exclusively, the agent of the owner, in conducting the repairs, and in making the sale. (Bunson v. Duncan, 3 Exqr. R. 644; The Brig Sarah Ann, 2 Sumner, 215; Scull v. Biddle, 2 Wash. C. R. 150.)
    4. There is no proof that she was under any lien for repairs, or could have been seized and sold; and even if she was, as the master had a large amount of funds on hand, he could have waited till the owner, or underwriters, had been heard from, amd supplied the vessel with further funds to complete the repairs.
    5. At the time of the sale of the vessel, the master had in hand cash, to the amount of $750, derived from the sale of the cargo, (Exhibit 17,) and the whole amount of repairs could not have exceeded $2,500; indeed, less than half that sum. The master says they would have cost, including revictualling the vessel, from $2,500 to $3,000.

      6. The right of the master to sell, in case of extraordinary emergency, is regarded with jealousy and watchfulness; the necessity must be clearly made out, and it must appear that no other course could reasonably have been taken. (2 Phil, on Ins. 3d ed. § 1579.)
    7. The master cannot give a bottomry bond, except in a case of extreme necessity, where funds cannot be obtained upon personal credit, or after communicating with the owners; much less, can he sell the vessel, and break up the voyage. (Heathom v. Darling, 1 Moo. P. C. R. 5; Soares v. Rann, 3 id. 1; Glasscott v. Lang, 2 Phil. Ch. R. 310.)
    IV. There was no valid abandonment, nor any thing which rendered an abandonment necessary.
    1. She should have been abandoned, if any right to abandon existed at all, when the plaintiff first heard news of her putting into Valparaiso.
    2. The long delay, was a waiver of any right to abandon.
    3. It was attempted, when it was utterly useless to the defendants.
    4. The sale did not dispense with an abandonment, nor convert that into a total, which was only a partial loss before the sale was made. (Knight v. Faith, 14 Jurist, 1-1114; S. C. 15, Queen’s B. R. 649; 2 Phil. on Ins. 3 ed. § 1576.)
    5. The fact of the sale is nothing in this respect, it is the state to which the vessel was reduced, at the time of the sale; and she was clearly, not under any such extreme necessity as to justify a sale or abandonment. (2 Arnould, 1082, 3.)
    V. The plaintiff, by receiving the proceeds of the vessel, after notice of the circumstances, ratified the sale, and made it his own, and thereby waived the abandonment, if one had been properly made. (2 Phil. 3 ed. § 1593; Pearce v. Ocean Ins. Co. 18 Pick. 83.)
    VI. The bottomry bond, given at St. Catherine’s, diminished the interest of the plaintiff in the vessel, to the extent of the amount of the bond, being $3,479.26; and, in fact the loss, to repair which this money was borrowed, was paid by the underwriters. (Read v. Mutual Ins. Co. 3 Sand. C. R. 54.)
    VII. Even if the plaintiff is entitled to recover, as for a total loss, yet the evidence shows that he has been paid; as, after deducting the bottomry bond, he has received more money from the sale of the vessel, than his remaining interest amounted to.

      Yin. The plaintiff is, in any event, only entitled to recover for a partial loss, to be adjusted upon proper principles; the adjustment, given in evidence, contains many improper allowances.
    Second, upon the cargo.
    1. The underwriters are not liable to the plaintiff for any loss sustained by the sale of the cargo to raise money to pay for repairs. In this case, the plaintiff’s property was sold by his own agent, to pay his own debt, or rather to discharge a duty incumbent on himself, to repair his own vessel. In a proper case, it may become the subject of general average, but the underwriters on the goods are not liable. (Hughes on Ins. 289, 90; 1 Phil, on Ins. 2d ed. 703, 4; 2 Arnould, 891, 960, 1343; Bunson v. Duncan, 3 Exqr. 646; Moses v. Sun Mut. Ins. Co. 1 Duer, 159; Powell v. Gudgeon, 5 M. & S. 431; Sarguay v. Hobson, 2 B. & C. 5; S. C. 4; Bing. 131.)
    2. None of the cargo was injured by any perils of the sea; if injured at all, it was caused by the careless manner of handling it at St. Catherine’s, fqr which the underwriters are not liable.
    3. It was the duty of the master to send it forward, as it was not of a perishable character, and he could have done so, but he made no effort whatever to that end. He probably omitted it because he ascertained it would bring very little in California. (Robinson v. Com. Ins. Co. 3 Sumner, 220; 2 Arnould, 1020-1028.)
    4. The plaintiff also adopted the sale of the cargo, and satisfied it by receiving from the master, who was his own agent, a portion of the proceeds.
    Third, upon the freight.
    The plaintiff was the principal person who was interested in the cargo, upon which freight was to be earned, as he owned it chiefly himself.
    Nearly all the bills of lading specify the cargo as his own.
    The whole actual value was about $10,000.
    A part of it was sold at St. Catherine’s, by Captain Disney, amounting net to 550 mil-reis, and 277 reis, and the proceeds were paid to Captain Dean.
    The residue was held by Captain Dean himself, to raise money for repairs at Valparaiso, as already stated.
    I. The vessel not having been injured to half her value, the sale of her, and the breaking up of the voyage having been unjustifiable, it follows, as a necessary consequence, that the loss on the freight was caused by the act of the plaintiff, by his agent, which prevents him from recovering for loss on freight.
    II. The omission to continue the voyage, and carry on the cargo, which could have been done within a reasonable time, in which the assured had a right to perform it, or to send the cargo on in another vessel, was the neglect of the plaintiff, and furnishes no ground of claim against the underwriters. (Herbert v. Hallet, 3 John. Cases, 93; Moody v. Jones, 4 B. & C., 394; S. C. 6 D. & R. 749.)
    III. The sale of the cargo was, as has been shown, to discharge the duty of repairing the ship, which was incumbent on the plaintiff, as owner. If it had been the cargo of a stranger, the owner would have been bound to refund the amount.
    It cannot be said, therefore, that either the cargo, or the freight upon it, was lost; if they were, it was caused by the voluntary appropriation, to other purposes, by the plaintiff himself. (Hughes on Ins. 219, 20; Bunson v. Duncan, 3 Exqr. 644.)
    IV. The vessel was, in fact, repaired, and ready to proceed on the voyage, and could have done so, if the master had delayed the sale until the owner or underwriters had sent on funds. This destroyed the claim for loss on freight. (Dickey v. N. Y. Ins. Co. 4 Cowen, 222; Center v. Am. Ins. Co. 7 id. 564.)

      Y. The plaintiff being the owner of the cargo, by his agent, the master sold it; the plaintiff himself subsequently ratified the sale, and received the proceeds, and this was a voluntary acceptance of the cargo, which, if he had been a stranger, would have bound him to pay freight pro rata, and he cannot, consequently, recover for loss of freight. It has, in fact, been earned, and, as the debtor and creditor are the same person, paid. (Welsh v. Hicks, 6 Cowen, 504; Smyth v. Wright, 15 Barb. S. C. R. 51.)
   By the Court.

Duer, J. delivered the opinion of the court, and after stating the material facts of the case, proceeded as follows : Whether, upon these facts, the plaintiff is entitled to recover a total loss upon the vessel, is the first and the most important of the many questions, which these cases involve, and it will be necessary for us to determine. If this question shall be decided in favor of the plaintiff, it has been contended, that his right to recover a total loss upon the cargo and freight, is a necessary consequence; but we think, that there are special circum-. stances that distinguish this case from those in which this consequence has been held to follow. It will be seen, hereafter, that the questions arising upon the cargo and freight policies are, in reality, distinct, and must, therefore, be separately considered.

The right of the plaintiff to recover a total loss upon the vessel, as we understood the arguments of his counsel, is based upon two grounds.

1st. The inability of the master to procure, at Valparaiso, the necessary funds for repairing the vessel, so as to enable her to prosecute her voyage.

2d. The sale of the vessel, which, under the actual circumstances, it is alleged, was necessary, and, consequently, justifiable. We are, therefore, to inquire, whether, upon either of these grounds, the abandonment can be sustained; for, if not, the complaint upon the vessel policies must be dismissed, or there must be a new trial; and, for the purposes of the discussion, we shall assume that the best exertions of the master, and all that the law requires, were used by him, to raise the necessary funds, and that the vessel, notwithstanding the repairs she had received, was incompetent, when sold, without further repairs, to pursue her voyage. We are not, however, to be understood as saying, that these facts are so clearly established by the evidence, that further proof, in relation to each of them, may not, hereafter, be justly required.

1st. Was the mere inability of the master to procure, at Valparaiso, the funds that he needed for repairing the vessel, a justifiable cause for breaking up the voyage?

When a vessel, disabled by the perils of the sea, is in a port of necessity, and it is ascertained that the cost of her repairs, making the usual deduction, will exceed a moiety of her value, the loss, although, in fact, partial, is total by construction of law, and the owner, if he is insured, and in due season elects to abandon, may demand its payment. His right to abandon is then unqualified and absolute. But it is not upon this ground alone that a vessel rendered innavigable by the perils insured against, may be rightfully abandoned, for although the estimated cost of her repairs may be less than half her value, yet if, by the exercise of that diligence, and the use of those means, which the assured and his agents are bound to employ, she cannot be placed in a condition to perform her voyage, it cannot be doubted, that there is a constructive total loss, the payment of which, upon a proper abandonment, may be j ustly claimed. When the impossibility of making the necessary repairs is occasioned by the want of materials and workmen, it is not denied that such is the law; but we consider the law to be just as clearly settled, that it is quite immaterial, whether the impracticability of making repairs, when the vessel is in a port of distress, proceeds from the want of materials and workmen, or .of the necessary funds or credit. It is the existence of the fact,, and the necessity of breaking up the voyage, which it creates, that justify an • abandonment; and such is not only the opinion of text writers, foreign and domestic, of the highest authority, but in many adjudged cases has been the language of the Court. .(2 Valin, 345, 7; 4 Boulay Paty, 298; 4 Benecke, 241; 2 Arnould, 1081; Tindal, Ch. J. 4 Car. and P. 283; Reid v. Bonham, 3 B. and Bing. 159.)

We cannot, therefore, hesitate to reject the position for which the learned counsel for the defendants contended; namely, that the inability of the master to raise the necessary funds for repairing the vessel, must in all cases be attributed to the negligence of his owner, who is bound to furnish him with all the funds or credit that the possible exigencies of the voyage may require. In our opinion no such duty rests upon the owner. It is not pretended that there is any general usage that creates a duty, that in its operation would be an oppressive tax, and, speaking generally, an unnecessary burden. Nothing, it seems to us, would be more inexpedient and unreasonable than to require that the owner shall supply the master with specie funds, (for in a port of necessity letters of credit would probably be unavailing,) equal m amount to three-fourths of the value of the vessel; that is, sufficient to defray the cost of all repairs, short of a constructive total loss, in any port of distress, however distant and obscure, into which the vessel, by the accidents of the voyage, maybe driven; for such is, in reality, the extent of the obligation that the argument of the defendants, followed to its consequences, would impose. We are convinced that the decision in the Court of Errors, in the case of The American Ins. Co. v. Ogden, (20 Wend. 287,) the authority on which the counsel for the defendants mainly relied, gives no sanction, nor even countenance, to such a doctrine. Not only was the vessel in that case in her port of destination, but there had been a positive misapplication of the funds that ought to have been applied to her repairs; and it was upon these special circumstances that the judgment of the court was manifestly founded. The fullest, and perhaps the ablest, opinion in that case, is that delivered by Mr. Senator Yerplanck; and we entirely concur with him in saying, that, “the broadly stated doctrine, that the want of funds wherewith to make repairs is not a valid cause of abandonment, is not correct as a general rule, but is applicable only to the cases where such want is chargeable to the want of ordinary diligence, or of good faith, on the part of the assured or his agents.” (20 Wend. 314.) The true and sole inquiry, therefore, is, what is the measure of the diligence that, for the purpose of repairing the vessel, when repairs are necessary, the master is bound to exercise? when unprovided with funds, what are the efforts that he ought to make ? what the means he is bound to employ in order to supply the want ? And these questions, to a certain extent, there is no difficulty in answering. If he cannot raise the sums that are needed upon the credit of his owner, or his own, the law not only gives him the power, but makes it his duty, to raise them upon the security of any part, or of the whole, of the property and interests under his control. He may pledge vessel, freight, and cargo, by bottomry, respondentia, or mortgage. (The Gratitudine, 3 Rob. Ad. R. 355; The Jacob, 4 Rob. 245; The Packet, 3 Mass. 255; The Fortitude, 2 Sumn. 348; Reid v. Bonham, 3 Brod. & Bing. 147; American Ins. Co. v. Coster, 3 Paige, 343; Abbot on Ship, p. 2, ch. 2, § 5, p. 150; Story on Agency, § 118; 3 Kent’s Com. 171-3.) And it is only when all these means have been resorted to with proper diligence, and have proved ineffectual, that he is justified in breaking up the voyage, or his owner, if insured, has any title to abandon. But it by no means follows, from what has now been said, that the diligence and efforts of the master, in procuring the means of repair, are in all cases to be limited to the port in which the disabled vessel has found a refuge. Although neither the proper materials or workmen are there to be found, or the requisite funds there to be procured, it is by no means a necessary consequence that he may at once abandon the voyage, and sacrifice, by an immediate sale, the property intrusted to his charge. His obligation to repair the vessel, if reparable at an expense of less than half her value, may still subsist, and his failure to perform the duty, operate to discharge the underwriters from all liability, beyond the payment of a partial loss. If, without any prejudicial delay, or increase of expenses, beyond a moiety of the value, the want of materials or workmen could have been supplied from a neighboring port, or the necessary funds have been obtained by a communication with his owner or consignee, the conduct, of the master in breaking up the voyage and selling vessel and cargo, it seems to us, could never be justified, and would furnish no ground for the recovery of a total loss. We select hypothetical cases to illustrate our meaning:

A vessel bound to, and owned in this city, is forced, by stress of weather, into an obscure harbor on the coast of Kew Jersey, or Long Island. She is so far injured that, without some repairs, she cannot leave the harbor, and the means of repairing her cannot there be found. Is the voyage, at once, to be broken up ? the insurers, to be at once charged with a total loss ? or, would it not be the plain duty of the master to communicate to his owners, without delay, the actual condition of the vessel? and equally their duty, by the transportation of materials and workmen, to make, without delay, the necessary repairs, and complete the voyage ? And when no effort is made to perform these duties, can it be believed, that an abandonment would ever be sustained? Or, take the case of a voyage to a foreign port. An American vessel bound to a port in the Baltic, is damaged by the perils of the seas, and seeks a refuge at Oowes. Materials and workmen there abound, but the master is destitute of funds, and in that small port there is no person able, or willing, to advance them. The vessel and cargo are, however, valuable, the cost of repairs moderate, compared with their value, and by resorting to a merchant or banker in London, the necessary funds may certainly and speedily be obtained. Would it not be extravagant to hold that the master, by limiting his efforts to Cowes, and refusing or neglecting to extend them to London, may convert the partial into a total loss ? And would it not be unreasonable to deny that such neglect would be a violation of duty, a breach of trust, upon which a claim for a total loss could never be founded? These supposed cases, it may be said, bear no very close analogy to that which is before us; but they sufficiently show that the right to abandon, when founded merely on the inability of the master to procure the means of repair in a port of necessity, is not, as when founded on the ascertained cost of repairs, unqualified and absolute. They show that the right is subject to such limitations or exceptions, that the propriety of its exercise, it may be truly said, must depend upon the particular circumstances of each case in which the question arises. The principles that ought to govern the decision of the question, it may not be difficult to state; but there is no fixed and invariable rule; nor, it may be added, any controlling precedent; and it is, therefore, from the nature, terms, and reasonable interpretation of the contract of the parties, that the principles which ought to govern us must be derived. Since wager policies are no longer tolerated, a contract of insurance is emphatically and purely a contract of indemnity; and the interests of commerce, and of the public, require that its true character as'such should never be forgotten, and, in all doubtful cases, be strictly maintained. Hence, the breaking up of a voyage ought never to be sanctioned, when it is certain that the ship-owner, if uninsured, would have continued to prosecute it; nor, consequently, the abandonment of a vessel, as innavigable, ever be sustained, when it is certain that the owner, if uninsured, would have elected to repair. When the policy is valued, it may frequently happen that the breaking up of the voyage, if a total loss may be recovered, would be far more advantageous to the ship-owner, than its successful termination. It is plain, that in these cases, there is a direct temptation to dishonesty and fraud; nor can it be doubted, that this is a temptation which it is the duty of a court of justice, as far as possible, to remove. So long as the valuation in the policy is held to be conclusive, it cannot be wholly removed; but its force may be greatly lessened by confining the power of abandonment, within those limits, which the nature and objects'of the contract, the intention of the parties, and the dictates of reason and policy, evidently prescribe.

The true principle upon which the whole doctrine of abandonment may be said to rest, and by which alone its application, in converting a partial into a total loss, can be justified, is that which, in the leading case of Anderson v. Wallis, (2 M. & Sel. 240,) is stated by Lord Ellenborough, with his accustomed brevity and force. It is, that an abandonment is never to be authorized, except when, at the time, the loss was actually total, or, in the highest degree, probable; and if we analyze the cases that have settled the law, as it now prevails in England, we shall find that it is this principle that runs through, explains, and justifies them all. To select an example from each class of cases. When the vessel insured is captured, there is an actual total loss; but, as she may be recaptured or restored, an abandonment is necessary to warrant its recovery; a title must be vested in the insurers to give them the benefit of the “ spes recuperandi.” But when the vessel is stranded, the question whether the loss shall be deemed partial, or so far total as to warrant an abandonment, will depend upon the nature and extent of the peril in which the vessel is involved, and the probable difficulty, hazard, and expense of attempting to deliver and repair her. When it appears that by proper exertions she might have been gotten off, and have been fully repaired at a moderate cost, the abandonment is void, and a partial loss only can be recovered; and to warrant the recovery of a total loss, it must be proved that the delivery of the vessel from the peril was, upon reasonable grounds, judged to be impracticable, or not fo be effected, unless at an expense that would absorb her value. In other words, it must be proved that a loss actually total, although not then existing, was in the highest degree probable. (Fontaine v. Phoenix Ins. Co., 11 Johns. 295; The Sarah Ann, 2 Sumner, 255.) We shall not deny that in the United States we have departed widely from the sound doctrine of abandonment, by extending to the vessel that moiety rule which, in its original application, was confined to the goods, and which, thus confined, had itself no other foundation than the existing probability of an eventual total loss; but although an error, which has proved a most fruitful source of litigation, and has broken up, at the expense of the underwriters, numerous voyages, that, uninsured, would have been completed, has become a part of our established law, we cannot see, that this affords any reason whatever for departing from the general law of insurance in cases, which the moiety rule, as extended and expounded by our courts, has failed to embrace. We do not believe that constructive total losses, as giving a right to abandon, ought to be multiplied by any further violation of the principle by which alone their introduction into the contract of insurance can be defended or explained. We must, therefore, hold that in all cases of damage or disaster to the ship from the perils insured against, other than the cases to which the moiety rule may with certainty be applied, the question, whether the vessel was justifiably abandoned and sold, or ought to have been repaired, must be determined by a reply to the inquiry, whether the condition of the vessel was such as to justify the belief that all efforts for enabling her to resume the voyage would be fruitless, or that the delay, difficulties, and expenses attending them would be such, that a total loss was a highly probable result. We do not say that it is necessary that the inquiry be made in the exact form that has now been stated. On the contrary, we approve, and would adopt in preference, that mode of submitting the question which for many years has prevailed in England, and which, in the case of Irving v. Manning, the most recent that we have found, was expressly sanctioned by the court of last resort. The question which, according to this decision and many which preceded it, the jury should be required to answer, and upon their answer to which their verdict will depend, is whether a prudent owner, if on the spot, and uninsured, in the exercise of a sound judgment, would have broken up the voyage and sold the ship, or have elected to repair? (Irving v. Manning, 1 H. of L. Cases, 78; Somners v. Sugrue, 4 Carr. & Payne, 284; Doyle v. Dallas, 1 Mood. & Rob. 44; Gardner v. Salvador, 1 id. 116; Donett v. Young, 1 Carr. & Marsh. 465; 2 Arnould, 1087, 1093, 1096, 1109,10,11.) Substantially, the question has the same meaning as that of the probability of a future total loss, since it is only when a total loss is believed to exist, or to be highly probable, that a prudent owner, uninsured, would decline to repair.

It follows, from this form of submitting the question, that it is not enough that the jury are satisfied that in the case before them the master acted in good faith, and in the honest belief that the course he followed was the best for the interests of all concerned. In the language of Lord Tenterden, (1 Mood. & R. 54,) the underwriters are not to be held hable, unless the jury are convinced, not only that the judgment of the master was honestly formed, but that, under the circumstances in which he was placed, it was the best and soundest judgment that could have been formed.

It may possibly be said, that in the cases to which I have referred, the cause turned entirely on the question of the validity of the sale of the vessel, as made by the master, and not on that of the right of the assured to abandon; but as it is only when there is a constructive total loss, which justifies the breaking up of the voyage, that the sale of the vessel can be justified as necessary, the questions are in truth identical, nor, when the abandonment has not been made until the sale has taken place, can they be separated.

That in cases of stranding, the course that an owner uninsured, in the exercise of the best judgment, would have followed, furnishes the correct test of the right of the assured to abandon, has been distinctly admitted, both by Mr. Justice Story, (The Sarah Ann, 2 Sum. 215,) and by Chancellor Walworth, (American Ins. do. v. Ogden, 20 Wendell, 302;) and we are not aware that any reason can be given why the test may not, with equal justice, be applied to every case in which an absolute right to abandon is not established by conclusive proof that the cost of repairs would have exceeded half the value; and by limiting its application to such cases that conflict of inconsistent rules, which Chancellor Walworth has deprecated, will be wholly avoided: no such conflict can arise.

Let us now apply the observations that have been made to the case before us.

For aught that appears, the condition of the vessel at Valparaiso, was one of entire safety, and it is proved that the master might have communicated with his owner in this city, by the Panama route, and have received an answer within eighty, at the utmost ninety, days from the date of his letter. We are bound to presume that the plaintiff, upon being informed of the exact-situation of the vessel, and of the inability of the master to make the repairs she needed, could and would have remitted to him the necessary funds, either in bills or by opening a credit in his favor with a house in Valparaiso. Let an additional month be allowed for repairing the vessel, and another, for the time that would have elapsed from the arrival of the vessel at Valparaiso until the failure of the master to raise there the funds that he required. We have thus five months, as the full period that would have elapsed, had the course that has been indicated been followed, from the first arrival of the vessel at Valparaiso, until she would have been fitted, by sufficient repairs, to resume the voyage. And the question, therefore, is, whether the fact that this, or even a greater delay in the resumption of the voyage, must have intervened had the master elected to remain at Valparaiso until he obtained from his owner the funds that he required, created of itself, independent of any other circumstances, a constructive total loss that warranted the master in breaking up the voyage, and justified an abandonment by his owner?

We are satisfied, both upon principle and upon the authorities, that, to this very material question, no other than a negative answer can be given. The mere continuance of a disabled vessel in a port of necessity, where she is in actual safety, and is not exnosed to further perils, furnishes no evidence whatever that, in the event, the partial loss will become total; and it is, doubtless, for this reason that it has been frequently decided, that a suspension of the voyage merely temporary, is, in no case, a valid ground of abandonment of the vessel, nor, unless the goods are perishable, even of the cargo. In the cases of Anderson v. Wallis, (2 M. & Sel. 240,) and Everth v. Smith, (id. 247,) the voyage was suspended by the •detention of the vessel in port for nearly six months, and yet, in each case, the abandonment was held to be void, and a partial loss only to be recoverable. In the case of Bradlie v. The Delaware Insurance Co., (12 Peters, 400,) in which Mr. Justice Story delivered the judgment of the Supreme Court of the United States, the foregoing, and other cases, are carefully reviewed, and the learned Judge, speaking in the name of the court, deduced from them the following, as the true and established doctrine. His language is, that “ the mere retardation of the voyage, by perils insured against, not amounting to, nor producing, a total incapacity of the vessel, eventually, to perform the voyage, cannot, upon principles well established, be admitted to constitute a technical total loss, which will authorize an abandonment.” He adds, that “ a retardation for the purpose of repairing damages from the perils insured against, the damages not exceeding a moiety of the value of the ship, falls directly within the doctrine.”

It is not possible for us to say, that the application of this established doctrine, to the present case, is at all varied, or affected, by the fact, that when the master resolved to sell, instead of repairing the vessel, the voyage, from the sale or damaged condition of the cargo, had ceased to be worth pursuing. In other words, that it was no longer possible that the plaintiff, either as the owner of the vessel or of the cargo, could derive, •from the further prosecution of the voyage, the benefits he had expected. It is true, that, in the time of Lord Mansfield, the loss of the voyage, as the loss of its anticipated profits was termed, in Goss v. Withers, (2 Burr, 683,) Hamilton v. Mendez, (id. 1198,) Milles v. Fletcher, (1 Douglas, 237,) and in many other cases, was held to be a valid and sufficient cause of abandonment, even of a ship; but not only were these cases directly opposed to the prior decision in the House of Lords, in Pole v. Fitzgerald, (Willis’ Rep. 641; S. C. in error, 5 Brown, P. 0.131,) but they have since been expressly overruled by many decisions in the English courts and in our own. The established doctrine now is, that the insurance is not on the voyage, but merely on the ability of the ship to perform the voyage. The meaning of the contract is, not that the voyage, as to its beneficial results, shall not be defeated, but that the vessel shall not be prevented from completing it, by the perils insured against; and, in judgment of law, the vessel is not so prevented, so long as she remains in the possession of the master, and although disabled, may be and ought to be repaired. (Parsons v. Scott, 2 Taunt. 363; Faulkner v. Ritchie, 2 M. & S. 290; Brown v. Smith, 1 Dow. P. C. 359; Naylor v. Taylor, Danson & Lloyd R. 248; Alexander v. Baltimore Ins. Co. 4 Cranch, 370; Huston v. Phoenix Ins. Co. 1 Wash. C. C. R. 400; Ritchie v. Mutual Ins. Co. 12 Peters, 405; 2 Arnould, 1064-1071; 2 Phillips, 3d ed. 255-258.) It is a necessary conclusion, from the remarks we have made and the authorities we have cited, that the delay in the prosecution of the voyage that would have resulted from the detention of the vessel for repairs, even combined with the fact that the objects of the voyage, as a mercantile adventure, were wholly defeated, was insufficient to justify the proceedings of the master, and, consequently, to warrant the claim of the assured for a total loss. Looking to these facts alone, we are clearly of opinion that the case belongs to the class of those in which it has been held that it was the plain duty of the master to have communicated with his owner, before he resolved on breaking up the voyage and selling the ship, and that his neglect, in the performance of this duty, entitled his owners to repudiate his acts; and we agree entirely with Mr. Phillips, that, in such cases, it is a partial loss only that can be recovered from the underwriters. Proceedings that would have been void as against his owners, if uninsured, can never be treated by them, when insured, as valid against the underwriters. (Tanner v. Bennett, 1 R. & M. 182; Scull v. Bridle, 2 Wash. C. C. R. 150; Pierce v. Ocean Ins. Co. 18 Pick. 83, 2 Phillips, 3d ed. p. 307, § 1678; The Fanny and Elmira, Edwards’ Adm. R. 119.)

But although the claim of the plaintiff for a total loss cannot, we think, be sustained upon the evidence now before us, it is possible other circumstances may have existed, which, if proved upon the trial, taken in connection with those that have been proved, would have entitled him to the judgment he demands. It may still be true, that the real state of the facts was such, that the detention of the vessel at Valparaiso, until the master could communicate with his owner and receive his answer, would have rendered a loss actually total, in the highest degree probable. It may be, that from the insecurity of the harbor, the season of the year, the action of worms upon her bottom, or other causes, the vessel, during her necessary detention for repairs would have been exposed to such additional hazards that a prudent owner, uninsured, in the exercise of a sound discretion, would have determined to sell, instead of repairing her. Ho proof in relation to these facts was given upon the trial that has been had; but, as it is alleged that the proof exists, we think it will not be unreasonable to grant a new trial, for the purpose of enabling the plaintiff to produce it, unless upon some other ground his claim for a total loss can be sustained.

2d. The next inquiry, therefore, is, whether the sale of the vessel created, of itself, a total loss, for which the defendants are liable; and we reply that, according to all the authorities, such could not be the effect of the sale, unless it was rendered necessary by the perils insured against, or was in itself an act of barratry. It has been truly said by an eminent Judge, “ that there is no such head of insurance law as a loss by sale.” Bayley, J., (1 Mood. & Rob. 19,) and the meaning is, that unless the facts that precede the sale constitute a constructive total loss, none can arise from the fact of sale, however disastrous in its result to the owner, for which the insurers can be made responsible. In the words of Mr. Arnould, “ the mere fact of a sale, irrespective of the state of the ship which made it necessary, can never give the assured a right to abandon,” (12 Arnould, 1082,) and in those of Mr. Phillips, “ that if the circumstances rendering a sale necessary do not constitute a total loss, a sale by the master will not make it such, unless it is a case of barratry,” (2 Phillips, 305, § 1571, 3d ed.,) and the language of these judicious writers is fully borne out by the cases to which they refer, and which we deem it needless to cite.

The good faith of the master, in the case before us, is undoubted, and hence the sole question is, whether the sale of the vessel, as made by him, was justified by a necessity constituting a constructive total loss. The allegation is, that the creditors, by whom the partial repairs on the vessel had been made or furnished, had acquired a lien which the master was unable to discharge, and which they threatened to enforce, and, consequently, that a sale by the master was necessary to prevent a forced sale by process of law. But, admitting that the facts thus relied on have been sufficiently proved, it is impossible to say that the necessity which they created was a consequence of the perils insured against, since it is manifest that it arose entirely from the voluntary and injudicious acts of the master, in ordering repairs to be made when he was unprovided with funds to defray their cost. Nor is this all: even where a lien for repairs is properly created, its existence furnishes no ground for an abandonment; nor is a partial converted into a total loss, even when the lien is enforced by a sale of the vessel under an admiralty sentence. To prevent a sale, by the discharge of the lien, is the duty of the owner, and the underwriters are not responsible for a loss not attributable to the perils insured against, but exclusively to his neglect, or that of his agents. (Thorlley v. Wilson, 2 B. & Aid. 313; Depau v. Ocean Ins. Co. 5 Cow. 63; Bradley v. Maryland Ins. Co. 12 Peters, 398; Williams v. Suffolk Ins. Co. 3 Sumn. R. 310; Humphrey v. Union Ins. Co. 3 Mass. 429.) We are, therefore, clearly of opinion that, unless the abandonment can be sustained upon grounds wholly independent of the sale of the vessel, and of the supposed necessity by which it is sought to be justified, it is a partial loss only that the plaintiff will be entitled to recover.

3d. The objections that have been urged on the part of the defendants to the recovery, in any event, of a total loss, must next be considered. If these objections, of any of them, are valid, instead of ordering a new trial, the loss, as partial, must he properly adjusted, and a final judgment be rendered for its amount.

There is no weight in the objection, so far as appears from the evidence now before us, that the abandonment was improperly delayed. The plaintiff was not bound to abandon when he first received the intelligence of the arrival of the vessel at Valparaiso. He had, in truth, no right to abandon, until he was informed that the voyage was broken up, and the vessel sold, in consequence of the inability of the master to procure the funds for her necessary repairs. The letter containing this information was probably not received by him until late in the month of December, and we cannot say that his abandonment, on the 8th of January following, was not made in due season. There was no delay by which the defendants could have been prejudiced.

The next objection is, that the right to abandon, if it existed at all, was divested by the sale of the vessel, before the abandonment was made. Where the total loss is claimed, on the sole ground of the innavigability of the ship, the underwriters, it is said, may defeat an abandonment, by electing to make themselves all necessary repairs; and if this be true, it follows, that to enable them to make this election, the abandonment must be made while the vessel still remains in the possession of the assured. It cannot be said that this doctrine,is unreasonable in itself, or is destitute of authority; but, although it seems to have been adopted by the Supreme Court of Massachusetts, it was, in our judgment, decisively rejected by our own Court of Errors, in the leading case of Center v. The American Ins. Co. (7 Cow. 564; S. C. 4 Wendell, 45.) The law, in this state, we consider now settled in conformity to the opinion of Mr. Justice Story, that the right of abandonment is not a shifting right, dependent upon the will of both the parties, but that where it has once rightfully attached, its exercise by the assured, cannot be prevented or defeated by any act or offer on the part of the underwriters. (Peel v. The Merchants' Ins. Co. 3 Mason, 29.)

Nor can we hold, that the right of abandonment, in the present case, was divested by the election of the master to repair. Had the repairs been completed, or so far completed, as to render the Vessel capable of resuming the voyage, such, undoubtedly, would have been the result. (Dickey v. The New York Ins. Co. 4 Cowen, 222; Humphrey v. The Union Ins. Co. 3 Mass. 429; Benson v. Chapman, 6 Man. & Ur. 792.) But as the repairs made were only-partial, and, as we infer from the evidence, left the vessel still unseaworthy, we see no reason to doubt that she was as properly a subject of abandonment, in her actual condition, as if no attempt to repair her had ever been made.

The question, whether the existence of a prior lien, created by a bottomry, is a bar to an abandonment, is not, under the circumstances of the case, necessary to be considered.

If the voyage was rightfully broken up, the sale that followed was plainly justifiable; and if, in the event of the recovery of a total loss, the defendants will be entitled to be credited, as salvage, with the whole proceeds of the sale, deducting only its necessary expenses, it is evident that the mere fact that a bottomry bond had been previously in force, will furnish no ground of complaint. As it appears from the evidence, that the whole of the partial loss that gave rise to the bottomry, has been satisfied by the defendants, it seems a necessary consequence that, if chargeable with a total loss, they will be entitled, on the settlement of its amount, to the credit that has been stated.

The objections, on the part of the defendant, being thus disposed of, we retain the opinion, that the purposes of justice require that, in the actions on the vessel policies, a new trial shall be granted; and we add, that, upon such trial, the right of the plaintiff to recover a total loss, will depend upon the answer that shall be given by the jury to the following question, namely, Whether, when the vessel was sold, the probability that a loss actually total would ensue, should she be detained in port until the necessary funds for her repairs could be procured, and the repairs be made, was such, that a prudent owner, uninsured, in the exercise of a sound judgment, would have decided, instead of repairing the vessel, to relinquish the voyage ?

4th. The questions that arise, upon the cargo and freight policies, will not long detain us.

Even should the right of the plaintiff to recover a total loss upon the vessel be conceded or established, it seems to us evident that, upon the facts now proved and admitted, he cannot be entitled to recover a total loss of the cargo. It is true that the cargo was lost to him by its sale, and that this loss was total, diminished only by the net proceeds of the sale; but the proximate cause of the loss was the sale itself; and this, as it was not an act of barratry, was certainly not a risk covered by the policy; and if a consequence at all of the perils insured against, it was a remote and accidental, not a direct and necessary, consequence. The cargo was not sold on account of its damaged condition, but for the single purpose of raising funds for repairing the vessel; and without a violation of principle, and a disregard of the authorities, we cannot hold that the insurers on the cargo are liable for the loss that resulted. It is not a loss within the terms and spirit of their contract. The law is thus settled by decisions, of which the authority has not been, denied; and we know of no distinction that can exempt the present case from the application of the doctrine that they establish. (Powell v. Gudgeon, 5 M. & Sel. 431; Sarquay v. Wilson, 4 Bing. 131; Moses v. The Sun Mutual Ins. Co. 1 Duer, 159.) It has been said that as the inability of the master to procure the funds that he needed, existed when the vessel arrived at "Valparaiso, the loss was at that time constructively total; that it is to this period, therefore, that the abandonment, when made, must be construed to relate, and that by its retrospective force, the master became, from that time, the agent of the defendants alone,—their agent in the sale of the cargo as well as of the vessel, (2 Phillips, 3d ed. § 1732, p. 1223 ; id. 3d ed. § 1708, and cases cited, pp. 395, 398,) but from this view of the rights and relations of the parties we are forced to dissent. In our opinion, there was no right of abandonment, no constructive total loss, until the master determined to break up the voyage, in consequence of the failure of his efforts to procure the necessary means for its prosecution; until then, the master acted solely as the agent of the plaintiff, with a sole view to the protection of his interests in the completion of the voyage. The sale of the cargo, therefore, as made by him, was, in judgment of law, the act of the plaintiff,—as truly so, as if he had directed it in person.

It has also been contended that, as the vessel was never repaired, and it is proved that no other could have been procured to carry on the cargo to its port of destination, it may justly be considered as having been, in fact, lost from the perils insured against, and the defendants be precluded from setting up its prior sale as a defence, since, in all events, its sale must have been ordered; but upon what principle underwriters can be made liable for a loss that would have happened from a peril insured against, had it not already taken place from a different cause, we are unable, we must confess, to understand. If goods insured free from capture, are seized and taken possession of by the enemy, and the ship that contained them having been released, and suffered to proceed on her voyage, founders at sea, we cannot believe, that an action for the recovery of a total loss could be maintained against the underwriters on the goods, upon the ground that, had they not been taken by the enemy, they would have perished with the ship.

Had a third person been the owner of the cargo, in the case before us, its sale would have given him an immediate right of action, for the recovery of its value, against the plaintiff, as owner of the vessel, and, assuredly, his right of action would not have been divested by the subsequent breaking up of the voyage. Let it be admitted that in the events that have happened, he would have had an election to seek the recovery of his loss in an action against his insurers, or against the plaintiff. In all cases, where such an election is. given to the assured, his insurers, upon payment of the loss, are subrogated to his rights and remedies against the vessel audits owners, (Marsh on Ins. 242 ; 2 Phillips, 419 ; 8 Kent’s Gom. 371 n.;) but where the same person is the owner of both vessel and cargo, as in the case before us, it would be absurd to permit him to recover a loss for which he would himself be immediately liable to the very persons from whom its recovery is sought. To permit a recovery in such a case, would, in the words of Lord Denman, be a scandal, as well as an absurdity; and to avoid a circuity of action that would justify the scandal, such a recovery is never allowed. (Walmsley v. Cooper, 2 Ad. & Ellis, 222; Connop v. Levy, xi. Queen’s Bench R. 760; Turner v. Davies, 2 Williams’ Saunders, 150, note.)

But although the claim of the plaintiff to recover a total loss of the cargo cannot, in our opinion, be admitted, it seems not Improbable that he has sustained, and is entitled to recover, a partial loss of a considerable amount. It appears that the cargo, when unladen at Valparaiso, was found to be greatly damaged, but what was the extent of this damage, and whether it was occasioned by the perils insured against, are questions which are left in uncertainty, and which, as the case now stands, we have neither the means, nor the power, to determine. That they may properly be submitted, to and determined by a jury, there must be a new trial in the actions upon the cargo, as well as upon the vessel policies.

It follows, from the observations that have already been made, that there can be no recovery at all upon the freight policies, and, consequently, that the complaints in these actions must be dismissed. The loss of the freight must be wholly ascribed to the voluntary act of the master, in selling the cargo; and the loss, although total, was no more a consequence of the perils insured against than that of the cargo itself. The freight from Hew York to Valparaiso was necessarily lost by the sale of the goods, from which it was to arise; and there is no evidence, nor is it pretended, that had the vessel been repaired, any freight would have been earned on her voyage from Valparaiso to her port of destination. Hence, it is a total loss that the plaintiff is entitled to recover, if he has any right to recover at all; and as the question of his right is determined against him, it would be idle to grant a new trial that could lead only to the same result, as our present decision.

Hew trial upon vessel and cargo policies, costs to abide event." Complaint upon freight policies dismissed with' costs.

       Pothier (Traité du Con. d’Assur. n. 126) alone expresses doubts, hut his doubts seem .to be founded upon the limited construction given by him to the French Ordinance.


source: Caselaw Access Project

author: By the Court. Duer, J.

license: Public Domain

text:
    John R. Blakiston and another v. John G. Dudley and others.
    The defendants, in consideration that the plaintiffs would furnish to one Ackley such coal as he might from time to time require, promised to accept the bills drawn upon them by Ackley, in favor of the plaintiffs, for the price of coal so delivered. A bill for’ $656.37 was drawn upon them by Ackley, for coal so furnished, which, upon its presentment by the plaintiffs, the defendants refused to accept.

      Held, that the promise of the defendants, not being in writing, was void, under § 6 of the Rev. Statutes, relating to promissory notes and bills of exchange.

      Held, that the plaintiffs were not within the exception created by § 10 of the Statutes, as they had neither drawn, nor negotiated, the bill in question.

      Held,, that the exception only applies to those who, having transferred a bill for value, have, in consequence of its non-acceptance, been rendered liable as drawers or endorsers.
    Complaint dismissed with costs.
    (Before Oakley, Cil J„ Dube and Boswobth, J.J.)
    February, 1856.

      The action was brought to recover damages for the wrongful refusal of the defendants to accept and pay a bill of exchange, drawn upon them by one Ackley, in favor of the plaintiffs.
    The complaint averred, in substance, that the defendants, in consideration that the plaintiffs, who are coal dealers in Philadelphia, would furnish to Ackley all the coal that, from time to time, he might require, for the purposes of a manufactory carried on by bim-, promised and agreed that they would accept and pay the drafts of Ackley for such coal, to be drawn on them in favor of the plaintiffs, and payable four months from date.
    That the plaintiffs, relying on this promise, had furnished Ackley, from time to time, with large quantities of coal, and that there being a balance due from him for coal so furnished, he, for the purpose of satisfying the same, drew and delivered to them the following draft upon the defendants:
    “$656-ror. Hew York, August, 2d, 1854.
    “ Four months after date, please pay to the order of Messrs. Blakiston & Cox six hundred and fifty-six fss dollars, value received, which place to account of
    “ A. L. Ackley.
    “To Messrs. Dudley, Jacobson & Churchill,
    Ko. 47 Broadway, K. Y.”
    That the plaintiffs endorsed this draft, and caused it to be presented to the defendants, who refused to accept the same, and that afterwards, on the 8th of December, 1854, when the draft matured, it was presented to the defendants for payment, and payment was refused. Judgment was demanded for the amount of the draft, with interest from its maturity.
    The answer of the defendants takes issue on all the material allegations in the complaint.
    The cause was tried before Oakley, Ch. J., and a jury, in May, 1855.
    The following are the material facts of the case, as proved upon the trial.
    The plaintiffs, in 1853, sold one Ackley divers cargoes of coal, for consumption at his factory at Sag Harbor, for which they were paid by his drafts on the firm of J. Gr. Dudley & Co., of Kew York, of whom, the defendants became the successors. Subsequently thereto Ackley made a contract with the plaintiffs to purchase of them three cargoes of coal for the price of $4.05 per ton, to be delivered before the first day of July, 1854, and to be paid for in cash in thirty days, “ or by draft, four months,” with interest at the rate of six per cent per annum.
    The contract was put in writing, but, before its execution, was taken by Ackley and the plaintiffs’ agent to the defendants’ office: when it was exhibited to defendants, the price of the coal and its cheapness, the amount wanted by Ackley, and the other terms of the contract, were fully discussed, and finally one of the defendants being asked if he would accept Ackley’s drafts for coal, as they had the year before, replied that they would, whereupon the contract was forthwith executed between Ackley and the plaintiffs’ agent.
    Subsequently, after some of the coal had been delivered, a delay took place in the delivery of the residue, owing to the plaintiffs’ giving a preference to other customers; whereupon Ackley went to Philadelphia, and not being able to induce plaintiffs to deliver the coal prior to July 1st, made a new arrangement with them, by which he agreed to pay thirty cents per ton more for the coal than the price stipulated in the original contract, and to accept a delivery of the same- after July 1st, whenever it should be convenient to the parties, and to pay for the same in cash. It did not appear that the defendants were ever cognizant of this alteration in the original contract, or that they ever assented thereto.
    On the 2d August the coal was shipped, and was received soon after by Ackley, at Sag Harbor. About the last of September, Ackley failed. About the middle of November he drew the draft in the complaint set forth, for the amount of- the shipment of August 2d, (making up the amount by charging the coal at the enhanced price,) which, being soon after presented to defendants, was refused acceptance. It was also presented for payment, which was refused. When the testimony on the part of the plaintiffs was closed, the counsel for the defendants moved for a dismissal of the complaint, upon the following grounds:—
    1st. That, as Ackley was the primary debtor, the promise of the defendants was collateral, and, not being in writing, was void under the statute of frauds, and

      2d. That the defendants were discharged by the alterations made in the contract, as to the price and time of performance.
    The motion was denied, and the counsel excepted.
    The jury, under the direction of the court, found a verdict for the plaintiffs for $670.42, the amount claimed, with interest, subject, however, to the opinion of the court, at General Term, upon all questions of law arising upon the facts in evidence.

      P. T. Woodbury, for the defendants,
    insisted that the verdict ought to be set aside and the complaint be dismissed, and, after arguing fully upon the grounds taken on the trial, he contended, that the promise of the defendants, to accept the bill in question, if all other objections failed, was certainly void under the provis ions of the Revised Statutes, in the statute relative to promissory notes and bills of exchange, (2 R. S. p. 763, § 608.)

      13. S. Van Winlcle, for the plaintiffs,
    claimed that they were entitled to judgment upon the verdict, and after arguing at length to show that the objections taken on the trial were "untenable, he insisted that the provisions in the Revised Statutes that had been referred to, ought to be liberally construed in favor of drawers and endorsers in joint faith, and that thus construed, the plaintiffs were brought, by the proof, within the exception contained in the 10th section of the statute. They had given value for the draft, and had endorsed it, and therefore had negotiated it.
   By the Court. Duer, J.

We do not think it necessary to decide the questions to which the arguments of counsel, on the hearing before us, were chiefly directed, and which alone were raised upon the trial; namely, whether the promise of the defendants ought not to be regarded as collateral, and, therefore, void under the statute of frauds; and, whether, if the promise was valid, they were not discharged from its performance, by the alterations made, without their assent, in the terms of the contract between the plaintiffs and Ackley. In relation to these questions, we content ourselves with saying, that, in leaving them undetermined, we are not to be considered as intimating, that they are free from difficulty—neither of them is so.

The only objection to the recovery of the plaintiffs that we shall consider is that which was raised, for the first time, on the argument before us, but which, as properly arising upon the facts, we were bound to entertain; and to this we are forced to say that no answer, that we can deem satisfactory, has been given. The objection is, that even upon the supposition that the promise of the defendants, to accept the bill in suit, was valid at common law, and not void under the statute of frauds, and that they were not discharged from the obligation it created by the alleged change in the terms of the contract between the plaintiffs and Ackley, it is still certain, that the promise was rendered void by those provisions in the Revised Statutes to which we were referred, and which I shall now cite.

The sixth section of the title “ Of Promissory Notes and Bills of Exchange” declares, that “no person within this state shall be charged as an accceptor on a bill of exchange, unless his acceptance shall be in writing, signed by himself or his lawful agentand the eighth, that “ an unconditional promise, in writing, to accept a bill before it is drawn, shall be deemed an actual acceptance, in favor of every person who, upon the faith thereof, shall have received the.bill for a valuable consideration.”

The tenth section, however, of the same title, creates an important exception from these provisions, by declaring that “ they shall not be construed to impair the right of any person to whom a promise to accept a bill may have been made, and who, on the faith of such promise, shall have drawn or negotiated the bill, to recover damages of the party making such promise, on his refusal to accept such bill.”

It seems to us that these sections are, all of them, free from obscurity or ambiguity, and that it is scarcely possible to state a reasonable doubt as to their true meaning and construction.

The promise of the defendants, upon which this action is founded, if unconditional, which may be doubted, was not in writing, and hence, unless we can hold that the plaintiffs drew, or negotiated, the bill in suit, they cannot be entitled to recover. They were not the drawers of the bill, and we cannot say that it was negotiated by them, without giving a meaning to the word “negotiated” that we cannot believe it has ever borne, and are satisfied, it was not designed to bear in the statute.

We think, that to negotiate a bill can only mean to transfer it for value, and that it is a solecism, to say, that a bill has been negotiated by a payee, who has.never parted with its ownership and possession. The fact, that the plaintiffs had given value for the bill when they received it, only proves its negotiation by the drawer—its negotiation to, and not by them. As to the allegation that they endorsed the bill, as they never delivered the bill to any person, with the intent of rendering themselves liable as endorsers, it is certain that they never endorsed it, in the legal sense of the term. Their putting their names upon the back of the bill, was not an endorsement, but a mere authority, to the agent whom they employed, to demand its acceptance and payment.

The manifest intention of the legislature, in § 10, was to create an exception, in favor of those who, having transferred a bill for value, on the faith of the promise of the drawee to accept it, have, in consequence of his refusal to accept, been rendered liable, and been subjected to damages, as drawers or endorsers.

Thus construed, the exception is reasonable and just, but, upon the construction that we have been urged to adopt by the counsel for the plaintiffs, the exception would, in effect, supersede the rule, since it would be difficult to imagine a case that it would not be found to embrace; that is, difficult to imagine a case in which an oral promise to accept a bill would not be as binding, and create, substantially, the same liability, as a promise in writing. The salutary provisions in sections six and eight would thus be rendered nugatory.

The plaintiffs, here, have not been made liable as endorsers, and have done no act by which they could be rendered so.

The verdict-must, therefore, be set aside, and, as no purpose could be answered by a new trial, a judgment, dismissing the complaint, with costs, must be entered for the'defendants.

Judgment accordingly.


author: By the Court. Bosworth, J.

text:
    Burrall v. De Groot, impleaded with Paton.
    A complaint, that a party “ made” Ms promissory note in writing, that the other-defendants “ endorsed it in blank, and the same, so endorsed, was delivered to the plaintiff, who now holds and owns the same,” imports, that the maker delivered it to the payees, and the last endorser to the plaintiff.
    The fact, that a defendant’s answer denies the receipt of notice of protest, does not make a notary’s certificate of the fact of service inadmissible as evidence.
    When, to an action on a note, usury is set up in the answer, without its being stated whether it is set up as a defence or counter claim, it will be deemed to be set up as a strict defence, and that only, and the answer will not be taken to be true, merely because it is not replied to.
    When a party purchases accommodation paper, at less than its face, on representations, made by the parties to it, that it is business paper, and on which he relies, he is entitled to recover the whole sum payable, by its terms, although it exceed the amount paid for it, with the legal interest thereon.
    (Before Oaklet, Ch. J., Duer and Bosworth, J.J.)
    February 23, 1856.
    This action comes before the court, on an appeal by De Groot, from a judgment entered upon a verdict recovered against him, by the plaintiff.
    It was tried before Mr. Justice Slosson and a jury, the 30th of March, 1855. The pleadings were as follows:
    Plaintiff avers that the defendant, Patón, heretofore, for value received, made his promissory note in writing, dated July 10,1854, whereby, four months after date thereof, he promised to pay to the order of the defendants, Joseph Carpenter and George R. Jaques, under their firm name of Carpenter & Jaques, one thousand dollars; that said firm of Carpenter & Jaques, and the defendant, De Groot, severally endorsed said note, in blank, and the same, so endorsed, was delivered to plaintiff, who now holds- and owns the same; that, at the maturity thereof, the said note was presented to the maker thereof, for payment, and payment thereof refused, of which the defendants, Carpenter, Jaques and De Groot, had due notice; that said note remains due and unpaid. Wherefore plaintiff demands judgment against the defendants, for the sum of one thousand dollars, with interest from November 13, 1854, besides protest, fees and costs of suit.

      The defendant, answering the complaint herein, by Skeffington Sanxay, his attorney, denies that the promissory note, in said complaint mentioned, was made for value received. And he denies, for want of knowledge, or information sufficient to form a belief, that said note was presented for payment, and payment refused, as alleged in said complaint, and he denies that he had due notice thereof.
    This defendant further saith, that said note was made without any consideration, and for the accommodation of Carpenter & Jaques, and lent to them; that this defendant endorsed the same for their accommodation, and without any consideration ever being received therefor; that Carpenter & Jaques passed the same to the plaintiff, and he received the same, in contravention of the laws of the state of Hew York against usury, and upon a corrupt and unlawful reservation, and agreement to reserve, a sum greater than seven per cent., for the loan, use, or forbearance of money: to wit, the sum of three-and-one-quarter per cent, per month. Wherefore, and by means of the premises, said plaintiff became, and was, and is, an unlawful holder of said note, and of the endorsement of this defendant thereon, and this defendant is entitled to have his name cancelled therefrom, and his liability discharged; and he demands judgment that the complaint be dismissed, as against him, and that his name be cancelled and discharged from said note.
    When the jury was empanelled, defendant’s counsel moved to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, which motion was denied.
    He then moved for judgment, on the ground that his answer contained counter claims not replied to, which motion was denied To each decision he excepted.
    The making and endorsement of the note in suit were then ad mitted. The plaintiff then read, in evidence, a notary’s certificate of presentment, demand of payment of the note, and of notice of protest to the endorser.
    Its reception and admissibility were objected to, “ on the ground that the defendant having denied, (in his answer,) the service of notice of protest, the notary’s certificate was not evidence of such ■service.” The objection was overruled, and the decision excepted to.

      Evidence was then given as to the question of usury, and tending to show that the note was bought by the plaintiff, relying on the truth of representations made by the parties, that the making and endorsement of the notes were business transactions.
    Proof of actual service of the notice of protest on De Groot, was given by the person who served it.
    Some other exceptions, of minor importance, were taken.
    Hone were taken to the charge of the court.
    The jury found a general verdict for $1,029.71, and found, specially, that the sum paid for the note when first negotiated, was $900.
    A judgment was entered for the larger sum. All the defendants appealed. But the appeal was prosecuted by De Groot only.

      S. Sanxay, for appellant.

      J. E. Burrell, for respondent.
   By the Court. Bosworth, J.

complaint states facts sufficient to constitute a cause of action. The averment that Patón made the note, is equivalent to saying that he signed it and delivered it to the payees.

The allegations that the payees andDe Groot “severallyendorsed said note, in blank, and that the same, so endorsed, was delivered to plaintiff, who now holds and owns the same,” would, on a liberal construction of language, be understood to mean, that the payees endorsed it to De Groot, and that he endorsed it to the plaintiff. (Code, § 467 and § 159.)

This language of the complaint should be most liberally construed, inasmuch as the answer avers that the note was, in fact, delivered to the plaintiff by a party to it. The word endorse imports a delivery, and the averment that the plaintiff has the possession of, and owns the note, in connection with those that precede it, is equivalent to saying that it was delivered by the payees to De Groot, and by De Groot to the plaintiff. Griswold v. Laverty, (12 L. Ob. 316,) is conclusive upon this point, so far as the judgment of this court is concerned.

Ho objection was made, at.the time, that the notary’s certificate of presentment and protest, did not conform,to the statute, or was not proper or sufficient evidence to prove those facts. That objection cannot be taken now. If taken at the trial, non constat, but other evidence would have been given. The objection taken was, that the fact of “service of notice of protest” could not be proved by the notary’s certificate, on the ground, that such service had been denied by a sworn answer. Service of it was subsequently proved by the person who made it. The objection actually taken is untenable. (Arnold v. Rock River Valley R. R. Co., decided January term, 1856.) Ante p.

The allegations of usury contained matter of defence, and, if true, constituted, at law, a flat bar to the action. If true, they showed that the plaintiff never had a right of action.

The answer does not, in terms, state that these facts are pleaded as a counter claim. If they are a counter claim, within the meaning of that word, as used in § 150 of the Code, it follows that they were admitted, by the plaintiff’s failure to controvert them, by a reply, and the defendant might have moved, on notice, for such judgment as the facts stated entitled him to. (Code, § 154.)

If they are to be viewed as a defence, and not a counter claim, they were put at issue by the Code, as upon a direct denial, or were avoided, as if new matter had been alleged sufficient to avoid them. (Code, § 168.)

When the facts, alleged in an answer, may possibly constitute a counter claim, but are such as always constituted a flat bar, at law, to the plaintiff’s right to recover, by showing, if true, that he never had any cause of action, they should be deemed to be set up as a defence merely, unless the answer expressly states that they are set up by way of counter claim. A verdict and judgment upon it, in favor of the defendant, would fully protect him against a future action. To preclude a plaintiff from a recovery, on the idea that he has admitted the allegations of such an answer to be true, by omitting to reply to it, when the same allegations, viewed as a full defence, and that only, would be put at issue by the Code, would operate as a surprise in all actions in which the defence of usury is interposed.

Hone of the exceptions taken to the admission or rejection of evidence are tenable.

The Judge, at the trial, could not withdraw the case from the consideration of the jury. There was evidence, on which it was necessary they should determine what the truth was, in relation to the facts controverted. There was, therefore, no error in refusing to direct a verdict to be found for the defendant.

It was expressly conceded, on the argument, that the charge itself was unexceptionable. No exception was, in fact, taken to any part of it. The case is before us upon an appeal from the judgment only, and not from any order denying a new trial, on the ground that the verdict is not contrary to evidence. Such an appeal presents only questions of law, and no others have been raised on the argument before us.

The jury having found that all the parties to this paper represented it to be business paper, that the plaintiff bought relying on the truth of these representations, and that the transaction was not a device to evade the laws against usury, the rights of the parties are the same as if it were, in fact, business paper.

The verdict, on such a state of facts, was, properly, given for the face of the note. The judgment must be affirmed.