text:
    James B. Murray v. Delia Shave.
    In March, 1851, the plaintiff leased to the defendant a house in-the city of New York, for the term of one year from the 1st of May following, at a rent, payable quarterly, of $150. In April, the defendant being desirous to give up her lease, made known her wishes to the plaintiff, who then entered into a new agreement, in writing, with a Mrs. K., by which the latter assumed the lease, bound herself to perform all its covenants, and to pay the rent reserved monthly in advance. Mrs. IC. entered into possession, under this agreement, and paid the accruing rent to the plaintiff, with the exception of the last . quarter’s.
    (Before Duer & Campbell, J.J.)
    April 27;
    April 28, 1853.
    To yecover the balance, the plaintiff brought this action, claiming that the defendant was liable for its payment under the original lease.

      Sold, that the -new agreement between the plaintiff and Mrs. K. operated in law to discharge the defendant from the covenants of her lease, and was a virtual ■ acceptance by him of the surrender which she then offered to make.
    This was an action to recover a balance of the annual rent of premises in the city of New York, alleged to be in arrear.
    The complaint set forth that the defendant, on or about the 3d day of March, 1851, by an agreement in writing, hired and took from the plaintiff the dwelling-house, known as No. 85 St. Mark’s Place, for the term of one year, at the yearly rent of $750, payable quarterly in advance, together with the water tax, and averred that the defendant had not paid the said rent in full, but that there was still due and owing to the plaintiff on account thereof the sum of $282, for which sum, with interest from the 1st of May, 1852, judgment was demanded.
    The defence set up in the-answer was, that, on or about the 20th of April, 1851, an agreement was made between the plaintiff and one Mary Kent, with the assent of the defendant, whereby the said Mary Kent was substituted in the place and stead of the defendant, as tenant to the plaintiff of the premises mentioned in the complaint, for the same term and at the same rent; whereby the agreement in the complaint mentioned, in respect to the liability of the defendant for the rent therein reserved, was wholly annulled.
    The action was tried before Mr. Chief Justice Oakley and a jury, on the 6th day of December, 1852.
    The execution of the agreement being admitted in the answer, the plaintiff produced and read the same in evidence. The agreement is in the words following :—

      “ This is to certify, that I have hired and taken from James B. Murray, the dwelling-house known as Ho. 85 St. Mark’s Place, corner of First Avenue, for the sole use and purpose of a private dwelling-house, for the term of one year, to commence the first day of May, one thousand eight hundred and fifty-one, at the yearly rent of seven hundred and fifty dollars ($750), payable quarterly in advance, together with the water-tax; and I engage not to let nor under-let the said premises, in whole nor in part, nor occupy the same for any business other than above stated, or deemed extra-hazardous on account of fire, without the written consent of James B. Murray, his heirs and assigns, first had and obtained, under penalty, at the option of said Murray, his heirs and assigns, of forfeiture and damages in the amount of at least one year’s rent.
    “ And I do hereby promise to make punctual payment of the rent, in manner aforesaid, and quit and surrender the premises at the expiration of the said term, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted. And if the rent reserved herein is not paid according to the conditions above named, or if the other, agreements, or any of them, are not fulfilled, I hereby agree that said James B. Murray, his heirs or assigns, may, at his or their option, re-enter upon and re-possess said premises and annul this lease.
    “ Given under my hand and seal, this third day of March, 1851.
    “ Delia Shave.”
    • (Witness,) “ Johh B. Mubbay.”
    The plaintiff thereupon rested his case.
    The defendant’s counsel then called as a witness, Mrs. Mary Ann Kent, who was sworn, and testified as follows : I occupied the premises in question, Ho". 85 St. Mark’s Place, from the 1st day of May, 1851, to the 1st day of May, 1852. I hired them from Mr. John B. Murray. (Plaintiff’s counsel admits said Murray was the agent of the plaintiff.) I hired the premises prior to the 1st of May. At the time I hired them I knew Mrs. Shave had previously taken them. I told Mr. Murray if Mrs. Shave gave up the premises I would take them, and after that I did take them, and at the time I took them, I paid a portion of the rent in advance. There was an agreement in writing on one side, between Hr. Hurray and me; that is, I gave him one, and he promised me one, but he never gave it to me.
    The defendant’s counsel here asks for the production of the agreement testified to by the witness, and it is produced, endorsed on the agreement of letting to the defendant. It is as follows:—
    “In consideration of one dollar to me this day paid by James B. Hurray, the receipt whereof I hereby acknowledge, I hereby assume the within lease, and agree to pay the rent of the said house monthly in advance, viz. the sum of sixty-two dollars fifty cents, on the first day of each and every month, and the water rent when due. And I further agree to perform all and every of the covenants therein contained, with the sole change of paying the rent monthly in advance, instead of quarterly in advance.
    “ Mary A. Kent.”
    Dated New York, April 21,1851.
    (Witness,)--.
    Being cross-examined, the witness says: I took three or four receipts from Hr. John B. Hurray, and two from his younger brother. Hr. Hurray afterwards called upon me and took all those receipts, and gave me a general receipt in lien of the others. Being asked to produce that receipt, she says: It is at my home, at New Rochelle.
    Being further directly examined, she says : When these receipts were taken, Hr. Hurray said he would give me a general receipt in full.
    Being further cross-examined, she says: Those receipts were signed by Hr. Hurray on account of rent received from me.
    The defendant’s counsel here rested the case on his part, and ■ insisted to the court that the agreement between the plaintiff and the witness, Hrs. Kent, was a virtual surrender of the agreement between the plaintiff and the defendant, and that the complaint should be dismissed. The court said that it would reserve that question, and refused to dismiss the complaint. Whereupon the counsel for the defendant excepted- -

      The plaintiff’s counsel then called as a witness,

      John B. Murray, who was sworn, and testified as follows: I am the agent of the plaintiff, and in that capacity rented the premises in question to the defendant, on the 3d of March, 1851. On the 24th of April Dr. Banners called on me, and said Mrs. Kent wished to see me. I saw Mrs. Kent, made the agreement with her, and she paid me part of the rent. I gave her a receipt. The receipt is produced by witness, and is as follows:—
    “ New York, April 24, 1851.
    “ Received from Mrs. Mary Ann Kent, sixty-two fvV dollars, for one month’s rent in advance, from 1st May next, of house No. 85 St. Mark’s Place, under lease of said house to Mrs. Delia Shave, dated March 3d, 1851, which lease Mrs. Kent has assumed to pay hereafter (at the request of Mrs. Shave), monthly, in advance. And all future receipts in her name will be to the same effect, and without prejudice to the terms of the lease.
    “ James B. Murray,
    1 “ $62tW. “ Per John B. Mtjbbay.”
    My understanding of the matter was, that Mrs. Kent was to be paymaster for the defendant. All the subsequent receipts were made in Mrs. Shave’s name. >
    Being cross-examined, the witness said: Dr. Banners told me that Mrs. Kent wished to take the house instead of the defendant. I told him that I could not change the tenant. I told Mrs. Shave that I would not make any change. I had no conversatiofi with Dr. Banners on the subject of his becoming security for Mrs. Kent, as I recollect. Dr. Banners said that Mrs. Kent' wanted to take the premises. I was satisfied that the defendant was responsible. When Mrs. Kent paid me she wanted the receipts in her name alone, without reference to Mrs. Shave. I refused to give her any other. I don’t know that she expressed any objection except to the first.
    The plaintiff’s counsel here rested the case on his part.
    The defendant’s counsel then called as a witness, Dr. George M. Hammers, who was sworn, and testified as follows: I called on Mr. Murray, the last witness, at the request of Mrs. Kent, prior to Hay, 1851, and asked him to transfer the lease of the premises to Mrs. Kent. He said that belonged to his father to do, and he would see him. I told him Mrs. Shave was sick, and wanted to give up the agreement. He asked me if Mrs. Kent was responsible, and if I would go security for her. I told him she had not asked me.
    The defendant’s counsel recalled
    Mrs. Kent, who further testified, as follows: I objected to the form of all the receipts given me, and sent one back by the boy Mr. Murray sent with it.
    The testimony here closed, and the defendant’s counsel again insisted to the court, that the agreement between the plaintiff and Mrs. Kent was a conclusive bar to the action. The court said it would reserve that question, and instructed the jury, that if they found, aside from the agreement, that there was an actual agreement to substitute Mrs. Kent, as tenant, in lieu of the defendant, and she took possession under such an agreement, then they should find their verdict for the defendant, otherwise for the plaintiff.
    The jury found a verdict for the plaintiff, subject to the opinion of the court at general term, as to the legal effect of the written agreement in- evidence, with the right to order a judgment for the defendant.

      J. L. Mason argued for the plaintiff
    upon the following points.
    I. The jury have found that there was no actual agreement to substitute Mrs. Kent in lieu of the defendant as tenant, or, in other words, that it was the intention of the parties, that, notwithstanding the covenant of Mrs. Kent, the original contract with Mrs. Shave should continue in full .force.
    II. If then the original agreement is superseded, and Mrs. Shave discharged, it is because a construction is put upon the writing executed by Mrs. Kent directly contrary to the intention of the parties.
    III. In giving a construction to the instrument, the court will confine itself to its terms, and see what they necessarily import—and will not use it as evidence from which a surrender may be inferred. The question presented is, not what may be inferred to have occurred previous to the execution of the instrument, and to have given rise to its execution, but, what is the legal effect of the language employed?
    IY. Such a construction will not be given to it as will’defeat the actual intention of the parties, unless any other construction is impossible, consistently with its plain and obvious meaning.
    Y. The instrument executed by Mrs. Kent is not, in terms, a cancellation or surrender of the original contract, or a discharge of Mrs. Shave from liability, or a letting of the premises to Mrs. Kent, or a substitution of her in place of Mrs. Shave; nor is it in terms any one of these, but simply a promise by Mrs. Kent, endorsed on the original contract, to pay the rent reserved in that contract, which is thereby recognised as a subsisting and uncancelled instrument.
    YI. If then this instrument has the effect of releasing Mrs. Shave, it must be because the simple fact of taking from Mrs. Kent, who enters into possession of the premises, an obligation to pay the rent, is, of itself,, a surrender of the original tenancy.
    YII. But it is well .settled that acceptance by a lessor of rents, from an assignee of the ..lessee, does not discharge the original liability of the lessee for any rent remaining unpaid; he is still liable to be sued in covenant. (Jackson v. Brownson, 7 J. R. 227; Thursly v. Plant, 1 Saund. 237; Archbold, Landl. & Ten., p. 35.)
    VIII. It is impossible then that the mere promise or engagement, by a person entering into the possession of the premises, to pay the rent, can be construed to be a surrender of the original contract. The natural inference, from the fact of the instrument being endorsed on the original contract, is, that it was intended to be continued, and that the promise by Mrs. Kent was in consideration of the consent to the assignment.. The terms of the instrument are more in accordance with the idea of an assignment by Mrs. Shave to Mrs. Kent, than of a surrender to the plaintiff.

      R. Goodman for the defendant contra—
    I. The agreement of letting to Mrs. Kent implies a release or surrender of the agreement with the‘defendant. Tt is a surrender by operation of law. This implication or presumption of law arises from the face and tenor of the instruments, and no other presumption can be supported therefrom. (2 Roll. Abr. 495, L. 41; Jackson v. Gardner, 8 Johns. 394; Stone v. Whiting, 2 Stark. 233; Sparrow v. Hawkes, 2 Esp. N. P. C. 505; Bailey v. Delaplaine, 1 Sandford R. 5.)
    II. Coupling the acts of the parties with the agreements, the presumption cannot be rebutted. (Thomas v. Cook, 2 B. & A. 119; Smith v. Niver, 2 Barbour S. C. R. 180; Watts v. Atcheson, 3 Bing. 462; Smith v. Mapleback, 1 T. R. 441.)
    TIT. The terms of the written instruments could not be varied by parol evidence. The presumption of law is raised from the instruments themselves, and the acts of the parties.
    IY. The evidence of the plaintiff’s agent, even if admissible, is merely as “ to his understanding of the matter,” and this understanding is in direct conflict with the written instruments, the acts of the parties, and the understanding of all the other parties and witnesses. There is no evidence that the defendant assented to the arrangement. This assent was dependent upon her release.
    Y. The verdict rendered in the action should be set aside, and judgment given for the defendant, dismissing the complaint with costs.
   By the Court. Duer, J.

It is quite certain that Mrs. Kent did not enter into the possession of the demised premises either as the assignee or sub-tenant of the defendant, yet, unless she held the possession in one or other of these characters, there is no principle of law or equity upon which the defendant can be made responsible for her acts or default. The entry of Mrs. Kent was not under the original lease, and there was no contract between her and the defendant, under which such an entry could be justified. Her entry was, as the immediate tenant of the plaintiff, under a new agreement, varying materially from the original lease, which, in the exercise of his own discretion, he chose to make with her. To this agreement the defendant was in no sense a party, nor does it appear that she had any knowledge of its terms or existence. She was willing that Mrs. Kent should be substituted in her place as the lessee, but the admission of Mrs. Kent into the possession was not her act, nor under any title obtained from her, but was solely the act of the plaintiff, under a title derived immediately from him.

Upon the question of law, therefore, reserved upon the trial, our opinion is clearly in favor of the defendant. We do not at all doubt that the new agreement between the plaintiff and Mrs. Kent operated, in law, to discharge the defendant wholly from the covenants of the lease, and was virtually an acceptance by him of the surrender, which, by offering Mrs. Kent as her substitute, she requested to make. .We attach no importance to the terms of the receipts for rent which the plaintiff gave to Mrs. Kent; they are evidence only that he wished to do what the law would not permit, bind Mrs. Kent by a new lease, and at the same time hold the defendant liable upon the old. He could not by his own act, without the assent of the defendant, alter the nature of his agreement with Mrs. Kent, nor vary its legal effect. The defendant had a right to determine for herself whether she would be responsible for the performance by Mrs. Kent of the covenants of the lease, and the only proper evidence that she meant to be thus responsible was, an assignment of the lease or a letting of the premises to. Mrs. Kent, as her own tenant. As the plaintiff, without this evidence, chose to admit Mrs. Kent into the possession, he could not release himself, nor can we relieve him, from the legal consequences of his act..

We think that the equity of this case corresponds with its law. It is clear from the testimony of Dr. Hanners, that the defendant meant to give up the lease entirely, and requested to be discharged by the substitution of Mrs. Kent as the immediate tenant. These facts were knpwn to the agent of the plaintiff, and if, with this knowledge, he meant to retain the liability óf the defendant upon the covenants in the lease, he was bound in good faith to give her immediate notice that such was his intention. In the absence of this notice she had the right to believe that Mrs. Kent was let into the possession in compliance with her request, and in conformity to its terms, and to give a different construction now to the acts and conduct of the parties, would be to give our sanction to what a court of equity would hold to be a fraud. We do not think that the rights of the plaintiff are at all affected by the finding, of the jury, which we construe as only meaning that there was no agreement between the plaintiff and defendant for the substitution as tenant of Mrs. Kent, independent of that which the law would infer from his agreement with the latter.

The verdict for the plaintiff is set aside, and a verdict and judgment thereon must be entered for the defendant with costs.


source: Caselaw Access Project

author: By the Court. Bosworth, J.

license: Public Domain

text:
    James M. Hood, Respondent, v. The Manhattan Fire Insurance Company, Appellant.
    (Before Oakley, Ch.J., Campbell and Bosworth, J.J.)
    April 6;
    May 14.
    By the terms of a policy of insurance, against fire, the subject-matter insured was described as a “barque (on-the stocks near said ship), building for,” &e., “with privilege to build another vessel alongside,” “in a ship-yard, on the west side of Taunton Biver, Massachusetts.”

      Held, that the policy not only covered so much of the contemplated barque as was actually on the stocks, but also such parts of the framework being in the ship-yard, as had been so far wrought, with the design to make them a part of the contemplated barque, as to be in a condition to be framed, and actually incorporated into the parts on the stocks, and which were in the proper place to be conveniently applied to that use, and which, by reason of being so wrought and fitted, were substantially valueless for any other purpose.
    This came before the General Term, on an appeal from a judgment at Special Term, and involves the question of the proper' construction of that part of the policy of insurance which describes the subject-matter insured. By a policy dated September 8, 1849, the defendant insured James M. Hood & Co. against loss or damage by fire to the amount of $7,500, “ on a ship on the stocks in a ship-yard, on the west side of Taunton River, in Somerset, Massachusetts,” from the first of the said September to the first of the following November.
    On or abouf the 20th of September, 1849, by mutual agreement between the parties to the policy, it was made to apply to a' barque then being erected bn the stocks near the said ship, and the following memorandum of such agreement was, by the defendant, inserted in a blank in the policy, left immediately after the description of the subject insured, and left in the printed form for the description of the subject insured, that is to say:
    “ September 20, ’49. This insurance is transferred to cover barque (on the stocks near said ship) building for Howes, Godfrey & Co., with privilege to build another vessel alongside.”
    The complaint alleged the foregoing facts, and a loss by fire occurring on the 17th of October, 1849, to the extent of $2,500, and averred that “ the said loss and damage was by the damage •by fire to the frame of the said barque then alongside thereof, in the place described in the said policy, and cut, fitted, adapted, and intended for the said barque, and, in fact, appertaining thereto, and part thereof.” It then proceeded to state, that notice of the loss was given, and a particular account of the loss and damage was delivered to the defendant, with the proper proofs, and that subsequently thereto, all the property and assets of the firm of James M. Hood & Go. were assigned to the plaintiff,' non-payment of, and refusal to pay the loss.
    The answer, among other things, denied “ that- within the time insured by said policy, a loss by fire, within the description of fire assumed in the policy, happened to the said barque so insured by the said policy, and then on the stocks in the ship-yard, in said policy mentioned, to the amount specified in said complaint, or to any amount.”
    “ And these defendants, on information and belief allege, that such timbers, plank, boards, or lumber, if any, were in separate pieces, and were not, nor was any part thereof, at the time of the alleged damage or destruction thereof aforesaid, or at any time previously, actually set up and upon the said stocks, in said ship-yard, or worked, or built, or incorporated in the said barque, then on the stocks in said yard, nor could the same, at the time of said fire, have been so incorporated in said barque, until they had been moved, raised, or transported from the place where they then were, and certain work and labor had been done to connect them with, and to build them into the said barque.”
    The fire of the 17th of October, “ broke out inside of a ship which was on the stocks and nearly completed, and the keel of which was about sixty feet north from the keel of the barque ; it burned up the, ship, and the frame of the barque. At that time the keel was blocked, and in its place for the barque ; some part of the frame was on the south side of the keel, some part on the north side of it; a part was north of the ship; a part of the frame was moulded, hewn and bevelled; some of-it had been actually laid across the keel, and fastened to it. The whole frame was in the yard, and two-thirds or three-quarters were moulded; there was no other part of the frame hewn and moulded; the stem-frame and stern-frame were alongside, and had been fastened together, and ready to be put up ; the rest was all ready to be put up ; it was not framed, but ready for framing; this timber was so cut as to supply this vessel and no other, and was useless for any other purpose. Three hundred and sixty-two sticks, which would have made forty-four frames, and which were ready for framing, were burned; the stem and the stern-frame were not burned. * * * Hone of these three hundred and sixty-two sticks had been put into frames, but they were ready therefor. * * * The frames could not have been placed on this barque until after they were put together; nothing was needed to be done, but to put them together, and put them up; they were not to be fastened by bolts to the keel, they were to be shoved between the keel and kelson.”
    The principal question arising upon this evidence being simply the-question, whether the property damaged by the fire was covered by .the policy, the judge, at the trial, directed the jury to find a verdict in favor of the plaintiff for the amount of the loss proved, to which charge the defendant excepted. The jury found a verdict for $2,869.44, on which judgment was entered, and from that judgment the defendant appealed.

      M. S. Bidwell, for appellant,
    made and argued the following points.

      I. The judge did not leave to the jury any question' whatever; Be did not, for instance, leave to them the question, whether, as a matter of fact, these sticks, destroyed by the fire, constituted the barque or a part of the barque insured; nor whether, as a matter of fact, they were “ lumber or building materials” mentioned in the subsequent insurance; but peremptorily directed the jury to fmff a verdict for the plaintiffs. Therefore, unless upon the evidence, these sticks, as a matter of law, constituted the barque or a part of .the barque insured; and unless, also, upon the evidence, as a matter of .law, they were not “ lumber or building materials” mentioned in such subsequent insurance, the direction was erroneous, and the verdict should be s’et aside. Two principal questions, therefore, are raised by this direction:- First: Were these sticks covered by the first insurance? Second: Were they not covered by the subsequent insurance ?
    H. They were not covered by the first policy. 1. They were not a barque. Though intended and partially prepared to be put into the barque which was the subject of insurance, they had not become a part of it, and were not ready to be put into it, nor were they even framed together; and they could not have become a part of the barque until more work had been done upon them. A barque, like a house, is essentially different from its materials collectively; as water is different from its component gases: it is a result of their combination in certain proportions: though the materials exist, it would be absurd to say that the barque or house exists until the materials are put together, or that the materials are a part of the barque. or house, until they are affixed to the nucleus of the structure while in progress. The contents of a lumber yard, a blacksmith’s shop, and a warehouse of cordage, &c., do not constitute a barque, or ship, or fleet. The ship results and begins to exist when the materials are adjusted and put together in certain permanent positions. The materials lose the character of' lumber, &c./and become barque or ship, &c., as fast as they are worked in and thereby incorporated in it; as a man’s dinner ceases to be food and becomes a part of the man as soon ' as it is eaten and digested and assimilated, and not before. 2. The insurance was confined to a structure on the stocks. There was, at the time of the insurance, a barque, on the stocks, otherwise the policy would not have taiken effect. But these sticks were not on the stocks, never had been on the stocks, and at the time of the fire were not ready to be put on the stocks. The policy did not cover timbers or other materials, although intended or prepared for the barque, until actually inserted and built in the barque on the stocks. If these sticks were the barque, then the barque was not on the stocks and the defendants are not liable. (2 Duer on Ins. 644, 646. 1 Phill. on Ins., 285, 347. 2 J. C. 127, 173. 8 J. R. 307.) 3. The other words inserted in the policy, as a part of the designation of the subject, lead to the same conclusion; all of them confine the risk to a particular locality, and exclude a liability for loss to matter in a different place. The subject insured was: 1. Abarque; 2. On the stocks; 3. Near the ship; 4. With the privilege of building another vessel alongside. This privilege would be nugatory, if the barque wherever situate or scattered was covered by the policy; and the provision would be absurd to speak of a vessel’s being alongside the harque, if the barque consisted of sticks of timber scattered, as these were, all over the yard. 4. Confining the risk to this structure on the stocks was important: if the policy had covered these scattered sticks, the premium would have been greater, and the risk would have been greater. In fact, if the sticks had become a part of the barque on the stocks, no loss would have been sustained: the barque on the stocks was not injured. 5. A different construction would leave it matter of the greatest uncertainty what was the subject insured; whether it was the timber for the barque, as soon as it was felled ? or only as soon as it was brought into the ship-yard ? or only as' soon as work was commenced on it to fit it for the barque ? or only as soon as the materials were ready to be framed together ? or -only as soon as they were entirely ready to be put intd the structure on the stocks ? or whether, if it was thus ready, but was not in the ship-yard, it would be covered by the policy, or whether it would be covered if in any part of the ship-yard, or only if in a particular part of it, and, in such a case, within how many feet it must be of the stocks ? -It is to be presumed that the parties could not have intended to enter into such a vague, doubtful, and uncertain contract, when they fixed with so much care and precision the very moment of the termination of the risk. 6. The insured themselves, in their preliminary proof under oath, deliberately and carefully made, described the property injured as “timber and lumber,”—as “442 pieces of timber,”—as “ ready to be put into the frame of the barque,” and as “ alongside of the barque. This language shows that the property destroyed constituted, not a part of the barque, hut pieces of timber and lumber alongside of it, and designed to be put into it. The plaintiff himself evidently felt that he could not, consistently with truth, swear that the barque was partially or totally injured. This proves that, according to the ordinary use of language, these pieces of timber had not become a part of the barque on the stocks mentioned in this policy of insurance, any more than the moulds, for which, also, the insured made a claim. 7. This construction is in conformity with analogous cases. (Sillsbury v. M'Coun, 3 Coms. R. 395, 6 Hill’s R. 427; Fryatt v. Sullivan Co., 5 Hill. R. 117; Johnson v. Hurst, 11 Wend. R. 135; Gregory v. Stryker, 2 Denio’s R. 628, Year-book, 5 H. 7, folio 15, cited 4 Denio’s R. 335, 336, n.; Wood’s Civil Law, 157, 159.) 8. Finally, it is in conformity with an express judicial opinion in a similar case. (Mason & Leap v. Franklin Ins. Co., 12 G. & John. R. 469.)
    III. The property destroyed, was covered by the subsequent policy. It was “ timber and building material.” The insured could have recovered for its destruction under the policy mentioned. It had been “ timber and building materials” within the meaning of that policy, and had been covered by that policy. When did it cease to he ?
    IT. For these reasons, the complaint should have been dismissed.
    V. At all events, the jury should not have been directed peremptorily to find a verdict for the plaintiff.
    VI. The evidence offered by the defendants and excluded by the judge was admissible, and the exceptions of the defendants were well taken in relation thereto. 1. The policy and receipt were admissible. 2. The proffered evidence of usage was admissible. (1 Duer on Insur. 171, pi. 18.)

      VIL The judoment should, be reversed.

      D. Lord, for respondent,
    made and argued the following.
    I. The frames, as shown in evidence, having been prepared for the barque insured, and made useless for any other vessel, were covered by the policy: they were in fact a part of the barque.
    II. They were not lumber or building materials covered by the policy of The New York Fire and Marine Insurance Company.
    III. Evidence of the usage of insurers to charge a different premium if timber, framework, &c., were included in a policy, was inadmissible in evidence.
   By the Court. Bosworth, J.

Prior to effecting the insurance in question, the defendants had insured the firm of James M. Hood & Go. $7500, “ on a ship, on the stocks, in a shipyard on the west side of Taunton river, in Somerset, Mass.”

On the 20th of September, 1849, the policy was transferred to a barque building by the same firm. The transfer reads thus, viz.:

“ Sept. 20, ’49. This insurance is transferred to cover a barque (on the stocks near said ship) building for Howes, Godfrey & Co., with privilege to build another vessel alongside. “$7500, 2 months $22/^-”

On the 17th of October, 1849, a fire originated in the ship referred to, being then nearly completed, by which the ship and the frame of the contemplated barque were burned. So much of the barque as was on the stocks was not burned.

The plaintiff is. by assignment, the owner of the claim of his firm, to be indemnified for the loss.

At the time of the fire, the keel of the barque was blocked, some part of the frame was moulded, hewn, and bevelled, some of it had been actually laid across the keel and fastened to it, the whole frame was in the yard, and two thirds or three quarters was moulded; the stem-frame and the stern-frame were alongside, and had been fastened together, and were ready to be put up. The rest was all ready to be put up. It was not framed, but ready for framing: “ this timber was so cut, as to supply this vessel and no other, and was useless for any other purpose.”

Four hundred and sixty-two sticks, which would have made forty-four frames, and which were ready for framing, were burned: the stem and stem frames were not burned. About ' \ one third of the' sticks burned were north of the ship, the others lay between the ship and the barque. The north boundary of the yard was about 120 feet from the keel. The frame was in the usual place for laying timber for a vessel building like the barque. A verdict was rendered for the plaintiff under the direction of the court for the value of the framework burned.

The main question is, What was covered by the policy ? Did it cover the framework of the barque, or only so much of the uncompleted barque as was fastened together and upon the stocks ?

The plaintiff insists that the former, and the defendant that the latter is the true construction.

The plaintiff insists that the frames which had been prepared expressly and solely for the barque, and were in' a condition to be framed into and made literally a part of the body of it, which were alongside of it to be thus applied, and which had been so adapted for the uses for which they were designed as to be valueless for any other, were, within the fair meaning ’ of this policy, a part of the barque, and were covered by the policy.

The defendant, on the other hand, contends, that until they were actually incorporated into the body of the barque, and had been fastened in the places for which they were designed, they formed no part of the barque, but were properly speaking only “ lumber and building materials contained in the shipyard,” and were not covered by the policy..

The words used in this policy have not received a settled legal construction, nor is it shown that by use and practice between assurers and assured, they have acquired a specific sense, so that the court can construe them according to such acquired sense and meaning.

The defendant does not insure, in terms, an “ unfinished barque,” but a “ barque building.” The defendant does not insure a subject matter, which has at the time a definite form, which it is to retain while covered by the policy, and the materials, then composing which, are alone covered by the policy.

But a “ barque (on the stocks) building” is insured. These words clearly imply that some part of the structure was then on the stocks, and that the policy was intended to cover more than so much of the structure as was then on the stocks. The defendant concedes that whatever materials should be subsequently incorporated into the structure, would from the moment of their actual incorporation be covered by the policy.

Is the fact of such actual incorporation the test by which to determine, whether the materials, designed and fitted to be component parts of it, and thereby unfitted for anything else, and being in their proper place to be actually incorporated in it, are in that condition a part of the barque, within the meaning of this policy ?

The participle, “building,” in its popular signification, means “ framing and erecting.”

Hence it is a common expression, that a house is “framed,” when the process of building has reached a point that the framework is in a condition to be put together.

The house is raised when the parts of the framework are placed and secured in their proper position, in a standing structure.

Suppose a “ house building,” was the subject insured, and a fire should happen after the framing was completed, and before the framework was put together, and the parts firmly pinned to each other, would not the injury to the frame, and all or any of its parts, be covered by the policy ?

Suppose the words, “ on the stocks,” were stricken from the policy, would the intention of the parties, as indicated by the policy, be different from what it must now be presumed to have been ? Suppose it had been simply “ on a barque building in their ship-yard, in Somerset,” would not the policy cover everything made to be, and fitted to be a part of it, and rendered valueless for anything else, although the parts had not been placed in position, and firmly secured in their appropriate places, when the fire occurred ?

Does the term, on the stocks,” as here used, mean more than this—that the barque, which was being framed and erected, and which was to be covered by the policy, was to be constructed upon the keel then on the stocks, and that nothing was to be deemed part of the subject matter insured, except what might be designed and actually fitted to be. a part of the particular structure thus begun? Were not these words used to identify the several parts of this structure, and to distinguish them from parts of the ship in which 'the fire originated, and from" parts of that which the plaintiff had the privilege of building alongside of the barque, if he should avail himself of such privilege ?

The materiel on the stocks was not a barque; it was not the whole of the subject matter insured. It was a part of the contemplated barque, which the plaintiff was engaged in building, but had not built. It was in its proper-place for laying those parts, of a barque building, which had been fitted to the extent these had, for the uses contemplated.

The frame pieces which were burnt, which had been so far wrought with the design to make them a part of the contemplated barque as to be in a condition to be framed, and actually incorporated into the parts on the stocks, which were in the proper place to be conveniently applied to that use, were also parts of the contemplated barque which the plaintiff' was building.

They were not parts of a barque actually built. No such thing existed, or was insured. All things made, for the purpose of forming an indispensable part of the contemplated structure, which had been so far completed as to be adapted to such purpose, and which, in consequence of such adaptation, were valueless for anything else, in common parlance and good sense, were equally parts of the contemplated barque, or of the barque building. Without the parts burned, or a substitute like them, there could be no barque.

They were as indispensable to the existence of a completed barque as the part on the stocks. They were as truly in their appropriate place, to answer the purpose for which they were designed, as the part on the stocks.

If not parts of the contemplated barque, what were they ?

Were they “lumber and building materials?” It seems the plaintiffs’ firm had a policy effected with another company on “ lumber and building materials,” in the shipyard, in which they were building a barque.

It would seem that one or the other of the policies should » cover the loss, unless, upon sound principles of construction, it may be said, that the materials thus insured, may be so changed in form and character by the labor of the artisan, with a view to make them parts of a barque building and also insured, as to be adapted, and in a position to be applied to the end contemplated, and thus made valueless for any other purpose, and yet be neither building materials, nor parts of a barque building; and while in this particular condition be covered by neither policy.

The phrase, “ lumber and building materials,” conveys the idea of subjects, which may be fitted as well into one structure of a particular class as into any other, and that they are in a condition to be wrought into a form, to be as well parts of one vessel, as of any other vessel of the class.

They indicate the idea of materials no further wrought than to subserve and be adapted to building purposes generally. They do not convey the idea of materials formed and cut, designed and adapted to be parts of a specific building in contemplation, and which, as fast as labor can do it, are being incorporated into the intended building, and which, by means of such adaptation, are valueless for any other purpose.

It seems quite clear that they do not answer the description of “ lumber and building materials,” as these terms are commonly understood. If they do not, the loss could not have been recovered under the policy on property of that character.

Suppose a wheelwright should effect a policy on the lumber and materials for building carriages, &c., in certain designated premises, and subsequently should effect another policy with another company, on a carriage building for A. B. in the same premises.

After some of the materials have had so much labor expended upon them, that the hubs are morticed to receive the spokes, and the spokes are completed and in their proper position to be, and for the purpose of being, driven into them ; and the fellies are completed to be fitted to the spokes, and the parts of the body so fashioned as to be in a condition to be put together, all are consumed by fife ? Will either policy, on fair principles of construction, attach to them, and if S0j which? Are they, in this state, lumber and materials for building carriages, &c., or are they parts of the contemplated carriage for which they are fitted and were designed? or are they neither?

If either, it would seem to be quite clear that they are parts of the carriage building.”

In construing this policy, the fact that the part on the stocks was not burned, is of no consequence. If that had been burned also, the question whether the policy covered any other parts of the contemplated barque, must necessarily have been determined by the same principles and considerations which must control this case on .the facts before us.

If all the parts had been burned, including the keel, still, on the construction claimed by the defendant’s counsel, neither the stem-frame, nor the stern-frame, nor any parts of the frame which might have been lying upon the keel, but not fastened to it, would have been covered by the policy.

.Such a construction is much narrower'than can be reasonably supposed to have been within the contemplation of the parties to a contract, the'object of which would seem to have been to secure' an indemnity to. the plaintiff against loss from injury by fire to parts of a vessel which he was laboring to construct, while so constructing it, or for a period named.

Such a construction would limit the operation of the policy to such parts of the contemplated structure as might be on the stocks, and actually united to’ each other, while other united but detached parts, lying alongside of .the keel, equally approximated to actual completion, and of far greater aggregate value, would not be covered by it.

We cannot think that such was the intention of the parties to the contract, nor that its terms coerce us to adopt the construction claimed by the defendants.

We concede that Mason & Leap v. The Franklin Ins. Co., 12 Gill. & John. R. 469, is, in its facts, substantially like this. That was decided as a cage of first" impression. That is the only case, apparently, in point, to furnish any aids in the disposition of this case not had by the court in the decision of that. In that case, the court gave the conclusions which they formed, without stating the considerations by which their judgments were controlled.

Of that case, it may be said, that the articles burned, for aught that appears, might as well have been used, and were as well adapted for the spars and rigging of some other vessel as that for which they were furnished. If substantially as valuable, and well adapted for such a use as that for which they had been bought, the fact is certainly one of some importance.

In that case the ship had been launched before the fire occurred. As a matter of substance, she had been built, but was not rigged, nor in every other respect fully finished.

In this case, the work of building had not so far progressed, as to have placed the different parts in such position as to have given them even the form of a skeleton of the “ barque building.” Unless the words, “ on the stocks,” are to be regarded as of themselves restrictive of the meaning, which would otherwise be given to the words, a “ barque building,” we cannot think effect will be given to the intention of the parties, otherwise than by holding that all the materials which had been wrought with the intent that they should be, and which were fitted to be parts of the contemplated barque, and which, by reason of such adaptation, were valueless for other purposes, which were lying in the ship-yard in the appropriate place to be, and with the intent that they should be incorporated into the structure, were parts of the “ barque building,” within the meaning of the words as used in the policy in question.

"We think the words, “on the stocks,” were not used to restrict ‘the natural meaning of the words, “ barque building,” but merely to indicate the parts on the stocks as specific parts of the barque to be built, and the locality which the keel was to occupy until the structure was completed, and to aid in determining, in case of a loss by fire, whether parts of a vessel or bark, fitted and ready to be incorporated into the body of a vessel, were actually parts of the intended barque or not.

Although the case is not free from doubt, yet we cannot resist the conviction, that the frames that were burned were as much parts of the contemplated barque as the keel on the stocks, within the»meaning and intent of the parties, as evidenced by the fair construction of their contract. The judgment appealed from must therefore be affirmed.


text:
    Joseph Ogden v. The General Mutual Insurance Co.
    (Before Oakley, Ch.J., Campbell and Bosworth, J.J.)
    April 14, 15, 18, 19.
    May 28, 1853.

    The defendants insured the plaintiff for the sum of $10,000 upon freight. The insurance was against total loss only, and the policy contained an express stipulation, that the defendants “ should not be liable for any partial loss whatever.”

      Held, tiiat the insurance was upon the whole freight as one integral subject, and not upon the separate items of freight, upon distinct and separate parts of the cargo, shipped by different shippers.

      Held, therefore, that if any freight had been earned, or could have been earned
    . upon any part of the cargo, the plaintiff was not entitled to recover.
    The ship to which the insurance related, returned in distress to New York, her port of' departure. Before her arrival on this return, there had been a necessary jettison of a part of her cargo; another part was so damaged that it could not be reshipped; but the residue was wholly undamaged. The ship was repaired within a reasonable time, at a cost of much less than half her value, and then proceeded with a full cargo to her original port of destination; but, in the interval, the master had sent forward the undamaged goods by another ship, at an increased freight, exceeding largely that which he was entitled to receive upon them.

      Held, that there was no total loss of freight,within the meaning of the policy, since the master might have entitled his owner to freight upon the undamaged goods, by retaining them, and carrying them forward in his own vessel. The loss of freight, therefore, upon these goods, was not owing to the perils insured against, but to an unnecessary and voluntary act of the master.

      Held, also, that as the undamaged goods, although sent forward in another ship, arrived in safety at their port of destination, freight was in fact earned upon them; and that, with the increased cost of earning it, as it was not in any legal sense a consequence of any peril insured against, the defendants as insurers -had no concern. It formed no part of a loss for which they, could be liable.
    Upon these grounds, verdict for the plaintiff set aside, and new trial granted— costs to abide the event.

      Appeal from a judgment at special term, denying a motion' on behalf of the defendants for a new trial, upon exceptions taken upon the trial. The cause was tried before the Chief Justice and a jury, in February, 1850.
    The action was upon a policy of insurance, executed by the defendants. By the policy, the defendants insured the plaintiff to_the amount of $10,000, “against total loss only,” upon the freight of goods, laden or to be laden on the ship St. Patrick, which was -valued at $48,000. A technical total loss of the vessel was to constitute a total loss of freight. It was expressly stipulated in the policy that it was without prejudice “ to any other insurance upon actual freight,” whether effected before or after its date; that the defendants “ shall not be liable for any partial loss whatever, nor for general average or expense, nor entitled to any salvage in case of loss.” The policy also provided and declared “that the said freights, hereby insured, are valued at $10,000, carried or not carried, earned or not earned; policy proof of interest.”
    The policy, when executed, was to continue in force from the 18th of December, 1844, to the 18th of December, 1845. On the 30th of December, 1845, it was renewed and continued in force until the 30th of December, 1846, and contained a provision, that, if then absent, the policy might be renewed three months, at a jwo rata, premium.
    The St. Patrick, at the time the policy was effected, was owned by certain persons named in the declaration, and they continued to own her until the time of the alleged loss. The policy and renewal were effected for their account and benefit, and to cover and protect their interests on the freights of the said ship on her several voyages, she being employed as a general ship, carrying cargo on freight between New York and Liverpool, or other transatlantic ports.
    She sailed on the voyage in question from the port of New York, on the 6th of October, 1846, bound for Liverpool, with a full cargo of lawful goods on freight.
    The agent of the owners for procuring freight in New York, had advertised that she would take cargo on freight for such a voyage; and the cargo had been received on board from a large number of different shippers thereof, to whom bills of lading, in the usual form, had been given, signed by the master of the ship.
    The aggregate total amount of freight and primage for the voyage, agreed by the shippers thereof to be paid for the whole cargo, upon its delivery at Liverpool, was about $8,524rW
    The ship having set sail and proceeded on the voyage, encountered repeated storms and hurricanes, was rendered leaky, and was so badly strained and injured as to be obliged to seek a port of necessity, and the master put her back for New York.
    After the ship was turned back, a part of the cargo was necessarily thrown overboard to, relieve the ship. The freight and primage on this part of the cargo, according to the rates specified in the bills of lading, amounted to $l,627r3TV.
    On the 2nd of November, the ship reached the port of New York, and was made fast to the Atlantic Dock.
    The next day a formal survey of the ship and cargo was had, and it was found necessary to unload the cargo.
    It was all unloaded and stored, except a part not necessary to be stored.
    A part of such cargo was perishable, and was so much damaged by the perils insured against, that it could not have been delivered at the port of'destination, in specie, as merchandise, or otherwise than as a mass of corruption; or could not within a reasonable time have been restored to such state that it could have been reshipped without danger to the ship or crew, and was sold by the master.
    The freight and primage on all the articles sold amounted to- about $5,588T/o.
    The ship was put on a dry dock very soon after she was discharged. She was repaired, and proceeded to take in an entirely new cargo, for Liverpool.
    The gross cost of the repairs made upon said vessel while in port, amounted to $6,224TW; from which one third of the cost of new repairs being deducted (new for old), the net partial loss amounted to $4,216.31.
    After being so repaired, she cleared from the Custom House on the 15th of December, 1846, on a voyage to Liverpool, with a full and entire new cargo on freight, and arrived in safety at her port of destination.
    Between the two periods of her sailing freights rose. While the St. Patrick was being repaired, the master and Mr. David Ogden, who had been appointed, by the master on his return to New York, an agent to manage the whole business, “ determined to tranship the residue of the cargo. The matter of retaining the goods not damaged and carrying them forward in the same ship was discussed, and they determined not to do it. The master determined that it was for the best interest of all concerned to reship them- in other vessels, though at an increased freight.”
    They were reshipped at a freight of £417,15s. and lid. The freight by the. St. Patrick on this part of the cargo was to be £251, 16s. and 5d. The expense of storage, labor, lighterage, resalting provisions, cooperage, &c., on this part of the cargo amounted to $366TW
    The disbursements for the St. Patrick, and expenses in preparing for .and fitting her for the voyage in October, were $4,016, including pilotage.
    The injury to the vessel did not amount to a technical total loss, and “ she was repaired and sailed within a reasonable time.”
    At the trial, the judge presiding charged the jury (among other things), that “ according to the true construction of this policy, the plaintiff cannot recover, unless he has shown that the whole freight was lost; an actual total loss is necessary, as distinct from a technical total loss.”
    That as to the jettisoned goods there was a total loss of freight.
    That as to the damaged goods which were sold, the freight on them was totally lost, if they were so damaged by perils of the seas, as to have lost their character, and could not have been delivered at the port of destination, in a piece, as merchandise, or otherwise than as a mass of corruption, and could not- within a reasonable time have been restored to such a state, as that they could have been reshipped, without danger to the ship or crew.
    That if the part of the cargo not jettisoned nor necessarily sold, had been retained by the master and carried on in the same vessel, “there could be no recovery in this action. The ship would then have earned a part of her freight, and there could not have been a total loss.”
    “ That if the expense of preparing to proceed on the voyage exceeds the freight to be earned, so that all the freight is absorbed, without paying anything to the shipowner, he is not bound, under such Circumstances, to go on with the operation— -a losing one.
    “Accordingly, if the jury shall find that the new freight paid on the goods shipped by other vessels was according to the i-ate then usual, and exceeded the oiáginal freight thereon, and that the expenses of the ship, such as wharfage, pilotage, labor, wages, provisions, and other charges on freight which would need to be incurred in sending for’ward the ship with goods capable of l’eshipment, would have exceeded the freight to be paid for such goods, and the small surd received as freight on the goods returned to the shippers, then the ship was not bound to proceed with these goods', and the freight on them was lost under the policy.”
    He further instructed the jury “ that there was no right to abandon the voyage on account of the injury to the ship, and that the expense of repairing her was not to be taken into view.”
    He was requested to charge (among other things) “that there had been no total loss of freight.”
    The jury found a verdict in favor of the plaintiffs for $10,3.74TyL.

      A. Hamilton, jun., and S. Jones,
    now insisted that the judgment at Special Term ought to be reversed, and a new trial granted, upon the following grounds.
    I. That there has been no actual loss of freight.
    II. That by the true construction of this policy, the defendant is liable only for an actual or technical total loss of the ship.
    III. That the freight on the jettisoned goods was to be deemed and treated as earned, and to be paid by the subjects saved and benefited thereby (2 Phill. on Ins. 92; Ibid. 141; Simons v. White, 3 Barn. & Cress. 308).
    IV. That the ship having been repaired in a reasonable time, and at an expense far less than half her value, and having, shortly after being so repaired, received freights as a general ship, and proceeded to the port of destination for which she first sailed, she might and ought, and was bound to receive and take on board the undamaged cargo, and such as could be carried with safety of her original lading, and have carried the same to the port of destination.
    V. The ship having been repaired in a reasonable time, and ready to resume her voyage already entered upon, the additional expense of transporting this cargo must be borne by the carrier or ship-owner; and if he sustain a loss, he had still earned his freight thereon, and the loss is partial and not total within the policy.
    VI. The ship having been refitted as aforesaid, even if the ship-owner was at liberty to send the goods in other vessels, the freight earned by the original ship, by that portion of her new cargo which was put in the place of this undamaged portion of the cargo, should be allowed to the defendants, the underwriters (Green v. Royal Exchange Assurance Company, 1 Marsh. Rep. 447).
    VII. The ship having been refitted as aforesaid, the additional expense of refitting her, attending the transportation of the cargo, by reason of the retardment of the voyage, must be borne by the ship-owner, or is the subject of general average, and cannot be deducted from the freight earned, or which might be earned by the original ship.
    VIH. That freight having been lawfully received and earned on goods returned to shippers, at their request, in the port of New York, there was not an actual total loss of freight (Whitney v. New York Firemen's Ins. Co., 18 John. 208).
    IX. That full freight in some cases, and fifty per cent, of freight in others, having been received by the plaintiff, under a claim of right to receive the same, there was not an actual total loss of freight.
    (Preceding nine, same as the nine taken at the trial.)
    X. That the identity of the voyage was not changed by the substitution of a new cargo ;' and that freight having been earned on the substituted cargo, there was not a total loss of freight under this policy (Green v. Royal Exchange Assurance Co., 6 Taunton, 68; Everth v. Smith, 2 M. & Selwyn, 278; 2 Phill. Ins. 357).
    XI. Where, by the express terms of the policy, the underwriters are not liable “ for any partial loss whatever,” they cannot be rendered liable for any loss which is partial in fact, and total only by construction of law (Griswold v. New York Ins. Co., 3 John. R. 321; Bradhurst v. Columbian Ins. Co., 9 John. R. 17; Saltus v. Ocean Ins. Co., 14 John. 138; Murray v. Hatch, 6 Mass. R. 465).
    XH. The court erred in admitting the evidence as to the amount of expenses in fitting the vessel for sea, previous to the sailing on the 17 th of December; and-also in rejecting the evidence offered to show that the freight of the cargo with which she sailed on 17th December, was larger than that which was payable on the nrevious cargo.

      F. B. Cutting, for the plaintiff,
    resisted the motion, and claimed an afiirmance of the judgment. - He made and argued the following points.
    I. There was a total loss of freight within the meaning of the policy. 1. The freight on the goods damaged and not forwarded to Liverpool, was lost. The charge of the judge upon this branch of the case is correct in point of law; it was not excepted to ; and the finding of the jury is conclusive as to the facts.
    The amount of freight and primage upon the whole cargo, was £1,775 18 3, which, at $4 80,............$8,524 22
    The freight and primage on the cargo sold in New York, and no part of which was earned, was........... $5,588 40
      (Whitney v. New York Ins. Co., 18 Johns. 208; Roux v. Salvador, 3 Bing. M. C. 266; Salters v. Ocean Ins. Co., 12 Johns. 107; Vlierboom v. Chapman, 13 Mee. & W. 230.) 2. As to the remnant of the cargo capable of transhipment, the shipowners were not bound to keep it in store, incur the expense of preparing for and resuming the voyage, and of retaining the cargo, &e. The expenses would have exceeded the freight to be earned by performing the voyage. They had the right to abandon it, and might have sold the ship, or otherwise disposed of her. The charge of the judge upon the point is correct. The jury have found that the freight paid for forwarding this part of the cargo by other vessels was according to the rate then usual, and exceeded the original freight thereon. They have also found that the expenses of the ship, such as wharfage^ pilotage, labor, wages, provisions and other charges on freight, which would have been incurred by sending forward the St. Patrick with the goods capable of reshipment, would have exceeded the freight to be earned for such goods, and the small amount received from the shippers or underwriters on the goods delivered up in New York (Ogden v. Gen. Mutual Ins. Co.; Court of Appeals, reversing the judgment of the Supreme Court; Bryan v. The American Ins. Co., 25 Wend. 617; Treadwell v. The Union Ins. Co., 6 Cowen, 270, 275; Pezant v. The National Ins. Co., 15 Wend: 453, 457; Salters v. The Ocean Ins. Co., 12 Johns. 107; Hudson v. Harrison, 3 Brod. & Bing. 105; 2 Phil. on Ins. 327,323,150; American Ins. Co. v. Center, remarks of Chan. Walworth, on pages 53 and 54, 4 Wend. 45). The fact that the owners of the ship acted in good faith in transhipping this part of the cargo, and in breaking up the voyage, was not disputed.
    The freight specified in the bills of lading for this part of the cargo was .... £251 16 5
    The cost of transhipping by other vessels
    was..............417 15 11
    Besides other expenses to put it in a condition to re-ship, viz......... $366 12
    3. The freight on the goods jettisoned was also lost. Loss of freight by jettison was one of the points expressly assumed. If the whole cargo had been thrown overboard, the right to recover for a total loss would have been clear. (Per Court of Appeals—McGrath v. Church, 1 Caine’s R. 196; Pezant v. National Ins. Co., 16 Wend. 463.) At the time of the jettison, the ship had relinquished the prosecution of the voyage, and was endeavoring to reach her port of departure. Even if there could have been a claim to make good the freight lost by the jettison, by contribution in general average, it would have been in the nature of salvage, and to have been collected by the underwriters. By the terms of this policy, the benefit of salvage belongs to the assured. Hie freight and primage upon the articles jettisoned, specified in the bills of lading, amounted to £339 Os 5d, equal to about $l,627f5V*
    II. The receipt by David Ogden, after the voyage had been broken up, from Sands, Fuller & Co., of freight upon their goods ; the retention by him of an amount equal to the freight out of the proceeds of the sales of the cargo abandoned to the Atlantic and New York Insurance Companies, and the arrangement with Mr. Routh, through Francis Griffin, Esq., in March, 1848, did not defeat the plaintiff’s right to recover for a total loss : David Ogden had the right to endeavor to save for his principal as much as possible by way of salvage.
    III. The freight earned on the subsequent voyage, did not enure to the benefit of the defendant. 1. They had expressly relinquished, by the terms -of the policy, any benefit of salvage. 2. The ship sailed on the new voyage on the 17th December,* 1846, and the policy expired on the 30th December, before she could have delivered her cargo. The underwriters would not have been liable for any loss happening during the voyage, after the policy had expired.
    IV. The loss of freight by the damage to the cargo, and by the jettison, left the voyage not worth pursuing. There was, for all practical purposes, and in any reasonable view of the case, a total loss of the freight for that voyage (15 Wend. 457, per Bronson, J.; 4 lb. 53, 54, per Chancellor Walworth; 25 Wend. 617; 2 Phil. Ins. 356-7, 323, 325).
    Y. The offer to prove the amount of freight by the freight list of the ship upon the cargo with which she sailed on the 17th December, 1846, was properly disallowed. It was irrelevant and immaterial.

      VI. Proof of the expenses incurred in preparing and fitting the St. Patrick for sea (independently of the cost of repairs), was not irrelevant. It was proper to be considered in reference to the question, whether the owners were bound to have retained and carried on that portion of the cargo which was capable of transhipment.
    VII. There is no exception to the charge, except so far as it did not conform to the points made by the defendants.

       The defendants, in the first instance, had demurred to the declaration in this case, upon the ground that it appeared upon its facéHhat there had been no total loss of the freight. The Superior Court gave judgment for the defendants upon the demurrer. The Supreme Court affirmed the judgment, but it was subsequently reversed by the Court of Appeals. Why the case has not been published in the Reports of that Court I am unable to say.—[Reporter.]

   By the Court. Bosworth, J.

The construction given to this policy by the charge to the jury, treated it as a policy upon freight as an integral subject, and not upon the several items of freight upon the distinct and separate parts of the cargo shipped by different shippers. The freight insured was treated as a totality, and the jury were instructed, that, if the undamaged goods, instead of being transhipped in other vessels, had been retained and carried on in the St. Patrick, “there could be no recovery in this action; the ship would then have earned a part of her freight, and there could not have been a total loss.”

The defendants, upon this motion, are entitled to a just and full application of that rule of construction. It was one for which they contended at the trial, and the plaintiff, instead of controverting or excepting to it, sought to bring himself within it, by showing a loss of freight on every part of the cargo, total in judgment of law.

The jury were also instructed that “there was no right to abandon the voyage on account of the injury to the ship.”

The opinion delivered in the Court of Appeals states that “ there was no obligation to abandon the voyage, nor had the assured, or their agent, a right to do so, by reason of the injuries sustained by the vessel, unless they extended to at least one-half of her value.”

It is proper to observe here that the cause was before that court on a demurrer to the declaration, which admitted the facts stated in the latter to be true. How far the facts established at the tidal correspond in substance and effect with those which the Court of Appeals regarded as admitted by the demurrer, it may be necessary to consider, in respect to some of the points made and argued in this motion.

The opinion referred to further states, that “ the declaration contains, in general terms, a sufficient allegation of an abandonment-of the voyage, and a consequent loss of freight within the terms of the policy. It would, nevertheless, be invalid, if the statement of the particulars of the loss showed that such loss was in fact partial.”

The opinion of that court, and the charge to the jury, concur in the proposition, that the assured had no right to abandon the voyage, by reason of the injuries sustained by the vessel.

It must be also taken as true, that the ship was repaired, and sailed within a reasonable time for the original port of destination ; and was repaired with a view to obtain and carry, and did carry a full cargo on freight to that port, from the port of necessity at which the repairs were made. She might have retained, and carried forward the undamaged goods. And the jury were instructed that, if she had retained and carried them forward, the loss of freight would have been partial, and not actually total, and no recovery could have been had in this action.

If this view be correct, and if the true rule as to the undamaged goods was stated to the jury, then it follows that, on the state of facts then existing, it depended entirely on the arbitrary volition of the assured whether the loss should be absolutely total or only partial, and not upon the question whether he had been prevented by the perils insured against, from entitling himself to the freight of some part of the cargo.

He had no right to abandon the voyage on account of the injuries to the ship. Those injuries were repaired, with the view of going to, and she did within a reasonable time sail for, the original port of destination, and carried and delivered a full cargo at that port. She could have carried these goods; and had she carried them, there could have been no recovery by the plaintiff. Freight might have been earned by carrying them in this ship.

The election to not so carry them, it is claimed, subjects the defendants to a liability for the amount insured; while an election to so carry, and having thus carried them, would have exonerated the defendants from all liability.

The practical question, as the cause was submitted to the jury, is this: Does, or can the liability of the defendants be made to depend upon the will of the assured, or does it depend upon facts, irrespective of what his will or election may be, with reference to such facts?

To answer this question understandingly, it is important to ascertain what is the precise nature of the contract of insurance on freight. Where the insurance is against actual total loss only, it is an undertaking that if the shipowner is prevented from earning any freight by any of the perils insured against, the underwriters will make good the loss on freight to the amount of their subscription.

In the case of a valued policy on freight, and an actual total loss, the underwriters, as a general rule, must pay the sum named in the policy.

But the underwriters do not contract that the voyage shall yield a profit to the assured, nor that it shall not cost him more to deliver the cargo, according to the terms of the bills of lading, than the aggregate gross amount of freight payable on the delivery of the cargo, or the sum named in the policy as the measure of the underwriters’ liability in the case of total loss.

They contract that a technical total loss of the vessel shall not be occasioned during the voyage by any of the perils insured against; or, such an event not happening, that the assured shall not be prevented by such perils from transporting and delivering some part of her cargo, in specie, at the port of destination.

If the perils insured against have neither caused a technical' total loss of the vessel, nor prevented the carrying and délivery of some part of the cargo in specie, so as to entitle the assured to freight, then the underwriters are not liable, for the reason that some freight has been earned, or might have been, if the assured, or their agents,'had performed their duty. And they cannot make their omission to perform their duty the ground of liability on the part of the underwriters.

The underwriters do not undertake to indemnify them against a loss of freight resulting from the non-performance of duty, but only against an actual total loss of freight, which the perils insured against shall have prevented them from earning. With the cost, to the assured, of earning it, the underwriters have no concern.

To avoid misconstruction, it is proper to remark, that by the cost of earning freight, it is not intended to intimate that the proportion of losses arising from the perils insured against and forming a subject of general average, properly chargeable on freight, is a matter that does not concern the underwriters, or that it is not to be regarded in determining whether that and other losses chargeable on freight only, may or may not make a case of actual total loss of freight.

When the ship becomes changed, by necessity, during the voyage, and the goods are sent forward by the master in a substituted" ship, in the discharge of a duty for the benefit of the owner of the goods at an increased freight, the increased freight is a charge upon the goods, and must be paid by the insurer of X the cargo. (Mumford v. Commercial Ins. Co., 5 L. R. 262; Searle v. Scovell, 4 J. Ch. R. 218; Dodge v. Marine Ins. Co., 17 Mass. 471: Hugg v. Augusta Ins. and Banking Co., 7 How. U. S. R. 695-609.)

Where a ship puts into a port of distress for repairs, and to enable the repairs to be made, the cargo is necessarily unloaded, the charges of unshipping and re-shipping the cargo, will generally fall on the underwriter on freight.

The charges of wages and provisions incident to a delay for repairs, are not chargeable to the underwriter on freight, any more than to an underwriter on the ship.

In England these expenses do not give a claim to either general or particular average. It is a part of the obligation of a shipowner to keep a competent crew on board at his own expense, from the commencement to the end of the voyage. (Jackson v. Charnock, 8 T. R. 209; Plummer v. Wildman, 3 Maule & Selwyn, 482; Power v. Whitmore, 4 Maule & Selwyn, 481.)

Where the damages to be repaired are such as to give a claim to general average, these expenses, by the law of this country, are to be contributed for, as general average. (2d Arnould on Insurance, 914, and cases cited in note 1.)

/ With these qualifications, it may be said, that with the cost I to the assured of earning freight, tiie underwriters have nothing to do, and the amount of such cost does not enter into the consideration whether the latter are or are not liable for an actual total loss of freight./ They do not undertake that the wages of the master and crew, and the necessary provisions for the Amy-age, shall not cost more than the amount of freight to be earned.

/The impossibility of entitling the assured to any freight, arising solely from the perils insured against, is the only event on which the underwriters can be made liable. /

In this case, by the express terms of the policy, it was “ specially agreed, that this company shall not be liable for any partial loss whatever, nor for general average or expense.”

Herbert v. Hallett, 3 J. G. 93, was an action upon a policy on freight, valued at $2,200, from New York to the Havana. The vessel, after encountering a gale of wind, and being driven on shore, Avas obliged to return to New York. The cargo was in part so damaged as to be incapable of being carried to the port of destination.

As to portions of the cargo, it did not appear what became of them. It was the opinion of a shipper of a part of the cargo, who was acquainted with the cargo before the brig sailed, and who received the goods into his store, on their return, that most of the cargo was so much damaged, and the voyage so broken up, as not to be worth pursuing. The vessel was repaired in a reasonable time, and proceeded on another voyage. There was no proof of an abandonment by the plaintiff.

It was held that the assured had no right to recover, as he ought to have insisted on carrying on the goods so as to entitle himself to the freight, and having lost the freight by his negligence or folly, the insurers were not liable.

Kent, J., remarked: “ It appears to me that the same peril,, and to the same extent, ought to exist, to authorize a recovery! on a policy on freight, as on a policy on the ship, and that be-1 fore the insured can recover, in either case, as for a total loss, the ship must be rendered unable to perform the voyage. * * If, in a like case, he could not recover a total loss on a policy! on the ship, I see no good reason why there should be a reco-f very for a total loss of freight. It would involve the absurdity! of assuming, in the one case, that the voyage was lost by the! peril, and in the other, that it was not lost.”

Each of the judges who gave opinions in that case, spoke of the fact that the vessel was repaired at a small expense, but no point was made as to the relative amount of the expense necessary to send forward the undamaged part of the, cargo, and the freight to be earned by carrying that part of the cargo.

The point decided by the' case is, that the ship-owner was not prevented by the perils insured against from completing the voyage, and entitling himself to freight on a part of the cargo, and, therefore, there was not an actual total loss of freight.

Moody v. Jones, 4 Barn. & Cress. 394, was an action upon a policy onfreight of the ship Isabella, from Kingston in Jamaica, to Liverpool. The vessel, after commencing her voyage, was compelled, by injuries arising from the perils insured against, to put back to Kingston for repairs, and to unload the whole cargo. The injuries to the vessel were repaired, but part of the cargo was so damaged that it could not be re-shipped without danger from ignition to the ship and the rest of the cargo, unless it underwent a process of washing with fresh water, and then drying in the sun, which would have detained the vessel six weeks, and been attended with expense equal to the freight. They were sold by the master, who proceeded on his voyage with the rest of the cargo, being unable to obtain other goods to complete his cargo in a reasonable time. He carried with him the proceeds of the damaged cargo, and paid them to the parties interested, without retaining the freight of the goods sold. His proceedings 'in Kingston were found to be such as a prudent man uninsured would have adopted.

The court said: It is very proper that the master should exercise a discretion, whether it be more fit to leave the goods behind and give up the value of the freight, than to bring them home. But it by no means follows as a consequence, that if he does, in the sound exercise of his discretion, leave part of the goods behind, and his owner thereby loses freight pro tanto, he can throw the loss on the underwriters.”

In that case it is obvious that the goods could not have been carried forward in their damaged condition. But they could have been restored to a condition in which they might have been carried forward. It would have cost, however, an expense' equal to the freight, besides the delay it would have occasioned to the voyage. The expense, however, would have occasioned, practically, a total loss of freight on this part of the cargo, if there can be said to be a total loss, because it costs the amount of it to earn it. But there was no loss of freight, if by that be meant merely an impossibility of entitling the ship-owner to it, arising from the perils insured. against. In the latter sense there was no loss of freight, and the court held the plaintiff not entitled to recover. The master failed to earn it, by electing not to earn it. ‘ The ground of his so electing was, that to earn it would not yield a profit to the ship-owner. He was not prevented by the perils insured against from earning it, and hence the underwriters were not liable. With the mere cost of earning it they had nothing to do. Such a consideration formed no part of the terms or conditions of théir contract. (1 Wood & Rob. 103; Brockelbank v. Sugure, 1 B. & Ad. 81, for the terms of the policy.)

It may probably be now regarded as settled law, that where the cargo is necessarily unloaded at an intermediate port in the course of the voyage, for the repairs of the ship, and on survey is found to be so sea-damaged that it must inevitably perish from putrefaction, before it can be carried to the port of destination, it may be justifiably sold, and the underwriters are liable for an absolute total loss of freight. This is on the principle that the earning of freight has become an absolute impossibility by reason of the perils insured against. (Roux v. Salvador, 3 Bing. N. C. 266; 7 How. U. S. R. 595.)

The right to insist that there was a total loss of freight upon the undamaged goods would have necessarily been the same as to the whole cargo, if all had been undamaged, and could have been sent forward, and had been sent forward by the master at the same increased freight, “ if the expenses of the ship, such as wharfage, pilotage, labor, wages, provisions, and other charges on freight, which would need to be incurred in sending forward the goods, would have exceeded the freight on the whole cargo.”

In such a case, whether it would be wise or foolish for a merchant to send on his goods, if the master insisted on his right to retain and forward them, or to be paid his full freight, is a question which cannot affect the relative rights of the assured and the underwriters on freight—the latter of whom can never be justly made responsible for any loss on freight, arising from the neglect or laches of the assured, or of the master as his agent. (1 J. R. 205; N. and L. Griswold v. N. Y. Insurance Co., 3 id. 321, S. C.)

In the latter case, the question was discussed and decided, whether the fact that the value of the damaged cargo would not have been worth the amount of the freight at the port of delivery, would justify the assured in abandoning the voyage, and entitle them to recover for a total loss. The court said that “ whether it would have been wise or foolish in the shippers to have sent on the flour in the condition it was in, was a question not to be put by the plaintiffs. It was none of their concern. The risk of the value of the cargo at the port of delivery lay with the owners of the cargo. All that the plaintiffs had to do by their contract was to .provide the means to take on the cargo, by repairing their ship, or procuring another.

If the damage done to the ship can be repaired within such time as not to spoil the goods by the delay, the master is bound to repair, and has a right to detain the cargo a reasonable time, until such repairs are finished, unless the full freight is tendered by the shipper of the goods. (Clark v. Mass. F. and M. Ins. Co., 2 Pick. 104.)

If the master waives his right to insist on the full freight, but instead thereof, permits the shipper to take his goods away, and forward them in another ship, the ship-owner cannot avail himself of the master’s laches, and recover* as for a total loss against the underwriters on freight. (3 J. C. 93; 3 J. R. 421; 2 Pick. 104; Hugg v. Augusta Ins. and Banking Co., 7 How. U. S. 595.)

Jordan v. Warren Ins. Co. (1 Story C. C. R.) was a case of insurance on freight, on a voyage at and from New Orleans to Havre. The vessel was compelled to put back to New Orleans, in consequence of injuries from the perils insured against. Tie cargo, consisting principally of cotton, worth about $60,000, was so much damaged, that it would have required some six months to dry, sort, and repack it, and put it in a condition for commercial purposes. The whole cargo was worth $71,000. The damaged part was sold for $19,744T2„2o. The residue, heing in a sound state, and worth about $2,210, was shipped for Havre in another vessel. The injury occurred on the 7th of June, and the vessel was repaired and fitted for sea before the 21st of July following; and on that day sailed with a new cargo for England, landed that cargo, and earned the freight. A total loss on freight was claimed, but it was decided that the plaintiff was not entitled to recover.

Justice Story said: “The ship was repaired, and capable again of taking on board the cargo at New Orleans within a reasonable time. The master had a right to require that it should be so taken on board, and carried on the voyage, as soon as it should be in a condition to be safely reshipped. He had a right to wait until the cargo could be dried, sorted, repacked, and prepared for reshipment. The delay arising thereby would be a mere retardation, or temporary interruption, or suspension of the voyage, and not an utter prostration or destruction of it. If, then, the freight has been lost, it has been lost by his own voluntary act, and not by the necessary operation of any of the perils insured against.”—(P. 351.) * *

“ It has been suggested that the time of the detention to refit was longer than the actual voyage to Havre, and, therefore, that the master might reasonably refuse to proceed on the voyage. But the underwriters take upon themselves no risk whatever as to the length or duration (and it might be added, or of the cost) ‘ of the voyage insured.’ What they undertake is, that, notwithstanding any of the perils insured against, the ship shall be capable of performing the voyage, so as to earn the freight insured; not that the voyage shall be performed in a longer or shorter period, or at a cost less than the freight to be earned.” “ The owner takes upon himself the chances of a short, or of a protracted passage, of a profitable or of a losing voyage.”

(Anderson v. Walter, 2 Maule & S. 240; Eruth v. Smith, id. 278; Benson v. Chapman, 6 Mann. & Granger, 792, and the judgment of the Court of Exchequer on reversing it, as stated in Arnold on Insurance, Perkins’s ed., vol. 2, p. 1143 [marginal] ; id., pp. 1042 to 1052, and 1136 to 1139, and cases there cited.) (Á ÜJJñ L Ot (

The cases seem to establish the proposition that, in an insurance on freight against actual total loss only, the underwriters are not liable, where the vessel is not so injured as to amount to a constructive total loss, and the cargo is not so injured as to prevent some part of it from being carried and delivered at the port of destination. In this case, a part of the cargo might have been retained and carried forward in the St. Patrick, the freight on which amounted to £251 16s. 5d. The value of this part of the cargo is not stated, but it consisted of 153 bales of cotton, 231 bbls. of turpentine, a lot of headings and shooks for casks, 197 tierces and 100 half-barrels of beef, 17 hogsheads, 1 tierce, and 254 barrels of pork.

The freight on this was actually earned by the transhipment and delivery of this part of the cargo, by the assured, or their agent. The only ground on which an actual total loss of this freight is claimed is, that it cost more than its amount to earn it; and' that in the intendment of the assured the voyage was abandoned, which was commenced on the 6th of October, notwithstanding the vessel was repaired in a reasonable time, with a view to proceed to the original port of destination, and did so proceed with a full cargo, and earn and receive freight.

It is confidently believed that no authority can be found to support the proposition that, in the case of an insurance against actual total loss only, the underwriters can be made liable on the ground that injuries from the perils insured against have caused so much damage to the cargo, that it will -cost more to put it in a condition to be reshipped and carried forward, than the amount of the freight payable on its delivery, where the vessel can be repaired in a reasonable time to prosecute the voyage, and at a cost which makes it the duty of the assured to repair her.

It has already been observed that the learned judge, who gave the only opinion pronounced when this cause was before the Court of Appeals, regarded it as a fact admitted by the demurrer, that there was an absolute relinquishment of the voyage, and not a mere intermission, or suspension of it, for the purpose of repairs.” But he also said that there was no right to relinquish it by reason of the injuries sustained by the vessel, unless they extended to at least one-half of her value. They did not equal a quarter of one-half of her value, and, therefore, if there was a pretended abandonment of the voyage, it was not rightful as between the assured and the underwriters, if abandoned merely on account of the injury to the vessel.

It has also been noticed that that opinion proceeds on the ground, that the insurance was not on the whole freight, of the whole cargo, as an integral subject, but on each of the items of freight payable on the delivery of the distinct portions of cargo shipped.

Even if that be a correct exposition of the nature of this policy, the defendants on this motion are entitled to have it regarded as an insurance on the whole freight as a totality. Such was the rule declared at the trial, and to hold otherwise now, would deprive the defendants of the benefit of an exception, which they might have taken to such a ruling, if it had been made at the trial.

The learned judge whose opinion has been adverted to, throughout the opinion, and in considering the statements made by the declaration and admitted by the demurrer, as to the fate of the different portions of the cargo, treated the voyage as having been actually and absolutely abandoned, by injuries to the vessel, susceptible of being proved, under the allegations in the declaration, to amount to a constructive total loss of the vessel. In treating of the question whether there was a total loss of freight on the jettisoned goods, he says: “In this case, however, the assured never had any valid claim to a contribution for the loss of freight on the jettisoned goods, for two reasons: first, no freight fro raid itmeris had been earned; and secondly, the ship never proceeded to her port of destination.”

Contrary to the allegation admitted by the demurrer, it appeared on the trial, that the ship was not only repaired in a reasonable time, at a small expense, but in point of fact did proceed to her port of destination, with a full cargo, the freight on which was over $10,000, while the original freight list was but a little over $8000, and delivered the new cargo and received the higher freight.

He adopts the rule laid down in Abbott on Shipping, that “ if part of the cargo be thrown overboard for the necessary preservation of the ship, and the remainder of the goods and the ship afterwards reach the place of destination (or delivery), the value of this part is to be answered to the merchant by way of general average, and the value of the freight thereof allowed to the owner.”

He adds : “In the case under consideration, the vessel never reached any port of rightful or actual delivery, or a port of discharge.”

How far this fact, assumed to be admitted by the demurrer, affected, in his judgment, the merits of the question, it is not proper to undertake to say.

But inasmuch, as on the facts proved on the trial, that opinion holds that the voyage could not be rightfully relinquished, and as it was shown that the ship did actually repair in a reasonable time and sail for and safely reach her port of destination with a fall cargo, at an increased freight, it may be justly said that nothing in that opinion controverts the proposition, that in judgment of law, the voyage was not abandoned, but on the contrary was actually performed, and the assured earned and received full freight.

The policy, on the sixth of October, 1846, attached upon the freight on a voyage at and from New York to Liverpool. It is by no means a clear proposition that it attached to the freight on that particular cargo with which the ship sailed, in such a sense, that the underwriters would be liable if that cargo was wholly lost, provided the vessel actually completed the voyage with a full cargo, and earning full freight. (1 Story C. C. R. 350-351; 2 Maule and S. 278, 284, 286, and Barclay v. Stirling, 5 id. 6.)

With respect to the goods which were so damaged that they were sold, it appeared at the trial, that the assured, in paying over the proceeds of this part of the cargo to the owners of it, by arrangement with them retained half of the freight on the condition that if he recovered in this suit, he was to pay the amount retained for freight to the owners of the goods sold, and if he failed in this action it was to be in full satisfaction of his freight on that part of the cargo. The amount so retained was $2,495.81. He has actually earned and received so much freight on the damaged goods, unless the judgment of the law is that the loss was actually total, then he is to pay this over, and will not have earned any freight.

This fact did not appear in the case as it was presented to the Court' of Appeals, and what that court would deem its legitimate effect, upon the rights of these parties, is not intimated in the opinion referred to.

It is quite obvious that very important facts were established at the trial, directly opposite to those which the Court of Appeals deemed to be admitted by the demurrer, and the case as it is now presented cannot be regarded as having been passed upon by that court.

One important question undoubtedly is: Is this policy one upon the whole freight as an integral subject, or is it one upon the items of freight upon the distinct shipments of cargo ?

■ At the trial, the former was held to be its true construction. It is a valued policy, without prejudice to prior or subsequent insurance on actual freight. Thefreight was valued at §10,000, and the “ policy proof of interest.” By the policy the defendants were not to be liable for any partial loss whatever, nor for general averages and expenses.

It would seem to have been the obvious intention of the parties, that the defendants were to pay the stipulated sum in case of a constructive total loss of freight on that voyage by the perils insured against, and that there was to be no liability, unless the assured was prevented by the perils insured against from entitling himself to any freight.

I deem the following propositions free from reasonable doubt:—

The injuries to the ship did not amount to a constructive total loss of the ship, and the plaintiffs had no right to abandon the voyage on that account.

The ship was repaired within a reasonable time for resuming and completing her voyage. She was repaired with a view to, and did proceed to her original port of destination. It was the right of the plaintiffs to have retained the undamaged goods, and carried them forward in this ship. Had they done so, there could have been no recovery in this action, for the reason that some freight would have been earned. Their not earning it, resulted from their own voluntary act, and not from the perils insured against, and therefore the underwriters are not liable.

That although injuries may arise from the perils insured against, which make it cost the assured more to earn the freight, than the amount of the freight, yet if they do not disable him from earning freight, the underwriters are not liable. They undertake nothing in respect to the profitableness or duration of the voyage. Their liability does not depend upon and cannot be affected by either of those considerations.

They merely contract that the assured shall not be prevented by the perils insured against from earning any freight, and if he is, they will pay, in case of a valued policy like this, the sum at which it is valued.

If these propositions are correct, the verdict cannot be sustained, but must be set aside, and a new trial granted.

As to some of the other propositions discussed on the argument, there is more room for doubt.

I think, that in judgment of law, the voyage commenced in October was completed. The ship was repaired with an actual intent, at the time of repairing her, of proceeding to the original port of destination. She was so repaired, and sailed for it, within a reasonable period for resuming the voyage. She carried a full cargo, and earned and received,the freight of it. Whether mentally abandoned or not, it was actually completed. The freight of a full cargo, on that voyage, was earned. (1 Story’s C. C. R. 350, 351; 2 Maule & Selwyn, 278; Stirling v. Barclay, 5 id.)

In the latter case there had been an abandonment to the underwriters on freight, and the question was, whether the latter were entitled to the freight of new cargo taken on board at an intermediate port, a port of necessity. It was held that it was freight earned during the voyage, and would be covered by the policy, and being such they were entitled to it. It would seem to follow that if the insurance had been against actual total loss only, the earning of such freight would exempt the underwriters from liability.

Freight upon the damaged goods was paid to the amount of $2,495.81.

The plaintiff was allowed to retain this sum out of the proceeds of the sales of the damaged goods, upon his assertion of a claim to full, or some freight, as a matter of right. He was allowed to retain it as a satisfaction of his claim to such freight. It does not depend upon the will of either of the parties to that arrangement, whether he shall keep it or not. But by the arrangement between them it is unconditionally his, unless this court decides that notwithstanding that arrangement, there was a total loss of freight on the part damaged, which he might, but preferred not to, entitle himself to. ' If the court decides that the freight on the undamaged goods was lost by his own voluntary act, and not by the perils insured against, and that, therefore, the defendants are not liable, then he has received, besides the freight on those goods, $2,495.81, paid to him as freight, on a claim of freight actually earned by him on that voyage, and in satisfaction of such claim.

The rule seems to be that the freight, which but for the jettison the ship-owner would have received for the goods jettisoned, must be made good to him by a general average contribution. (Phillips on Ins. 91; Benecke’s Pr. of Indem. 178; Columbian Ins. Co. of Alexandria v. Ashly et al., 13 Peters, 344.)

We all concur in the opinion that there should be a new trial, on the grounds that the freight on the undamaged goods was not lost by the perils insured against, but by the voluntary act of the assured; and that the policy was a policy on freight as a totality.

These points being of themselves sufficient to dispose of the case, as it is presented by the bill of exceptions, it is unnecessary for the court, and it does not intend to express a definite opinion upon the other questions arising upon it.