author: Oakley, J.,

text:
    Israel C. Langdon versus The New-York Equitable Insurance Company.
    Oct. Term, 1828.
    The keeping of oil and spirituous liquors by a grocer in his store for the “ purposes of ordinary retail," “ and in quantities not unusually large,” is not a “ storing” of them, within the meaning of that clause of the policies of insurance against fire, commonly used in the city of New-York, which prohibits, the appropriation of the building insured, for the purpose of “ storing therein,” any goods denominated hazardous or extra-hazardous, in the memorandum of special rates annexed to the policies.
    This was an action of assumpsit, upon a policy of insurance against fire, for five years, executed by the defendants in favour of the plaintiff, to the amount of $2000, upon “ a three .story brick building, with a slate roof, situated on the corner of Hudson and King streets,” in the city of New-York, as described in a certain report, filed in the office of the defendants.
    The report here referred to was a survey made by the agent of the defendants, at their request and by their direction, wherein the building in question was described as unfinished at the date of the survey; but as one which was to be completed, with a cellar and cellar kitchen ; the first story to have one room with a fire place, “ the store, entry, and stairs.”
    This survey was produced at the trial by the defendants, upon the requisition qf the plaintiff, and made part of the evidence in the cause, but the plaintiff bad no knowledge thereof at the time it was made and filed in the office of the defendants.
    The policy (like other fire policies in the city of New-York) Contained.the following clause, to wit: “'And it is agreed and de- “ dared to be the true intent and meaning of the parties hereto, “ that in case th& above mentioned building shall, at any time af- “ ter the making, and during the time this policy would otherwise “ continue in force, be appropriated, applied of used to or for the “ purpose of carrying on, or exercising therein, any trade, busi- “ ness, or vocation denominated hazardous or extra-hazardous, or
      “ specified in the memorandum of special rates, in the proposals “ annexed to this policy, or for the purpose of storing therein any “ of the articles, goods, or merchandise, in the same proposals de- “ nominated hazardous, or extra-hazardous, or included in the “ memorandum of special rates, unless herein otherwise specially “ provided for, or hereafter agreed by this corporation in writing, “ to be added to, or endorsed upon this policy, then and from “ thenceforth," so long as the same shall be so appropriated, ap- “ plied or used, these presents shall cease, and be of no force or “ effect.” *
    In the proposals annexed to the policy, oil and.spirituous liquors are classed among the goods denominated hazardous; but the business of a grocer is not included among the hazardous or extra hazardous occupations; while that of a tavern keeper is enumerated among the former.
    The cause was tried before Mr. Justice Hoffman.
    At the trial, the plaintiff proved that the building insured was worth $3000, and that it was destroyed by fire on the morning of the first of November, 1827. The fire originated at some distance from the premises in question, in a yard fronting on Hamersleystreet, whence it extended to a carpenter’s shop in the neighbourhood, and from thence along the' adjoining fences to a wooden building in Hudson-street, four lots distant from the building insured, and from thence along the intermediate buildings to the house in question. The witnesses for the plaintiff also testified, that the situation of the house, at the intersection of two streets, and the manner in which a part of it teas built, indicated that it was intended for a “ grocery store” at the time it was erected.

    The defendants proved, that at the time when the house was consumed, and for some time anterior thereto, the store on the first floor of the building, and the cellar under the same, were occupied by one Archer, as a “ family retail grocery;” and that at the time of the fire, he had on hand, in the store and cellar, “ some molasses, some potatoes, one cask of oil, one barrel of rum, one cask of Jamaica spirits, and one pipe of gin.” The oil was in the cellar, and in its original cask; but from the other casks, more or less of the liquors had been drawn out for the use of the store; and all the liquors in the store had been taken from these casks. These goods were purchased and kept for the purpose of being gold in small quantities by retail. Archer usually kept all kinds of spirituous liquors, and used the cellar for the purpose of put-a palj 0f pjg goods'thei'ein; but such only as were intended to be retailed in the store, which was replenished, as occasion required, from the stock in the cellar. At the time of the fire, the goods in the store were saved; but those in the cellar were consumed.
    The counsel for the defendants then offered to prove, that it is, and ever has been, the uniform custom among underwriters on policies against fire in the city of New-York, in all cases of insurance upon grocery stores, whore it is the, intention of the insured to keep spirituous liquors therein, for sale by retail, to state such privilege, either by inserting it in the body "of the policy, or by endorsement thereon, or by some other memorandum in writing. But this testimony was excluded by the presiding judge, and the counsel for the defendant excepted to his opinion.
    Upon this state of facts, the counsel for the defendants contended, that the plaintiff was not entitled to recover; and prayed that the jury might be charged, that keeping a “ grocery store” in the said building, and the keeping of oil and spirituous liquors therein for the purpose of retail, in the manner herein before mentioned, was a “ storing” of the same, within the meaning of the policy, and a violation of the contract on the part of the plaintiffs, which precluded a recovery.
    This instruction the presiding judge refused to give, but charged the jury that- the plaintiff was entitled to recover to the extent of the loss proved; and the jury thereupon returned a verdict for $2000 in favour of the plaintiff. .
    The counsel for the defendants having objected to this opinion, now moved for a new trial, upon the ground of a misdirection.,

      Mr. C. C. King, for the defendants, made the following points":
    I. That the keeping of spirituous liquors and oil in the “ store and cellar” of the building, for the purposes of sale in the manner stated in the testimony, was a “ storing” therein within the intent and meaning of the policy; and that as the building was used for such purposes at the time of the fire, the policy was void.
    II. The testimony as to the usage, offered at the trial, was admissible, for the purpose of showing the real meaning of the term, “ storing,” as used in the policy.
    Every express stipulation or condition contained in the policy, must be strictly performed, whatever may be the motive of its insertion, or whether material to the risk or not. [1 Condy’s Mar. 348. Phil. on In. 124, 125. Park, on In. ch. 18. [Lon. ed.) 318, 319, 20. 3 Kent’s Com. 235. and the authorities there.] If the warranty be not complied with, although for the best reasons, the policy has no effect. [Park, 320. Marsh. 349. Phil. 127, 128.]
    This is the rule relative to marine policies, and there is no difference in this respect between marine and fire policies. [Fowler v. The Ætna In. Co. 6 Cow. Rep. 673. 3 Dow. 262. 4 Mass. R. 330.] The rate of insurance shows, that no hazardous risk was contemplated, and there is nothing in the policy itself which waives the conditions. The survey says, that the -first story is to have one room with a fire-place,' “ the store, entry, and stairs.” This was all the written evidence offered at the trial, and it cannot be pretended, that it is “specially provided in writing,” by this survey, that the building might be used for the storing of hazardous articles therein. The term “store,” used in the survey, does not imply a permission to use the building for any purpose not warranted by the policy: because the implication (if admissible at all) must be such a necessary implication as to amount to a special provision in writing. To reach this, the words must, ex vi termini, mean a store in which hazardous and extra-hazardous goods may be kept. But this is by no means a necessart'y implication arising from the expressions of the survey. Neither does the situation of the building at the intersection of two streets indicate, as a necessary consequence, that it was to be used for a grocery. There was no proof that it was to be appropriated to this purpose, and yet the court are called upon to infer a fact, andfrom that, a privilege, which cannot exist except by express permission in writing. That oil and spirits were in the building at the time of the fire, is fully proved, and the question is, whether they were stored, there in such manner as to violate the contract, and avoid the policy_
    ^le common acceptance of the terms, the keeping of goods in a place for sale or preservation, is a storing. In this sense of the word, the policy was undoubtedly .violated; and if a storing be proved, then, by the rules of construction, applicable to the express stipulations in the policy, the court must intend that it is a storing within the meaning of the contract, unless the contrary clearly appear. x
    The quantity of goods in the store, or the mode of sale, cannot affect the question; because, if the policy be construed by this rule, it may include one grocer, and exclude another, which is manifestly incorrect. The roles of construction must be uniform and consistent, and if the business of a grocer necessarily implies that hazardous goods may be kept by him for sale within the building insured, then the extent to which that business may be carried on, cannot be the criterion by which to establish the meaning of the words used.
    But if there were a doubt upon this point, then the testimony of the witness was admissible, not to prove the contract, but the acceptation of the term “ storing,” among those who are most interested in the question. We are seeking after the meaning of a peculiar term used in the policy, and if that be doubtful, the manner in which it is received by uniform custom—by the usage— may be proved by parol. [Beau. v. Stupont, Doug. 1 l.]

      Mr. J. Anthon and Mr. Slosson, for the plaintiff.
    There are noadjudicated cases bearing upon the point now before the court, and the only way in which the question can be solved, is by a critical examination of the policy itself It is said, that the construction to be given to this contract must be strict. If by strict, an interpretation is meant, derived from the words of the agreement itself, we admit that the construction must be strict, and we claim that, from the very terms of the policy, the property of the assured Was fully protected.
    In the first place, the articles usually kept in a grocery store, are not to he found among those denominated hazardous or extra-hazardous, in the “ proposals for insuring” attached to the policy. And were it not for the proviso in the agreement itself, the assured would have a perfect right to keep a “ store” of any kind in the building insured.
    This proviso is to be divided into two parts: the first has reference to the business to be carried on, and the second .to the articles which may be stored.
    With regard to the first, the plaintiff has an undoubted right to cany on any business in the building, which is not prohibited by the policy. Now, the business of a grocer is not prohibited by the policy, nor is it classed among the “ trades” or occupations denominated hazardous or extra-hazardous by the proposals. If, then, the assured may carry on the business of a grocer, without any objection derived from the contract itself, he may undoubtedly carry it on to its fullest extent. Any fraudulent evasion of the policy, by the storing of an unusual quantity of spirituous liquors, not necessary for the business carried on, might perhaps be fatal to the contract. But here there are certain trades and occupations (ship chandlers, tavern keepers, tobacco manufacturers, &c.) excepted by the terms of the contract; and the exceptions prove that the agreement covers every occupation not expressly prohibited.
    Besides this, the insurers knew from the report of their own agent, that a part of this building was to be occupied as a grocery, and they knew it also, from the nature and situation of the premises insured. There is no surprise in the case, no deception, no fraud,; and there is no pretence that any real injury has actually occurred to- the defendants from the use to which this building was appropriated. Can this defence, then, be sustained upon the grounds assumed by the defendants 1 and will the assured be allowed to shield themselves from the obligations of their contract by a forced construction of their own words'?
    ll But what is the real meaning of the words, and what construction is to he put upon the term storing, as used in the policy 1 In its correct acceptation, the word means, the repositing of specific articles in a warehouse for preservation and redelivery in

      specie; and there can be no good reason why any" other'meaning should be attached to it, in construing a policy of insurance. There is a broad distinction between goods reposited on storage, and those kept for the purpose of being sold by retail: and the „ , . .... T. . , , . reason for the distinction is obvious. If a warehouse used tor the purposes of storing, contain a large quantity of spirituous liquors and oil, these very articles, if once set on fire, would cause the conflagration of the premises insured, and every thing connected with them. But the accidental burning of such small quantities of spirituous liquors as are usually kept by a grocer, would hardly produce this result, and'was never contemplated by the parties. If the construction contended for by the defendants be correct, if the quantity of the articles prohibited, and the purpose for which they are kept,, have no bearing upon the meaning of the word, as used in the policy, what private dwelling which contains a cask of . brandy, can be considered as safe within the terms of this agreement % If the keeping of spirituous liquors and oil in a grocery for the purposes of ordinary retail, can be considered as a storing within the meaning of the policy, the same meaning must be extended to the keeping of the same articles in a private dwelling for the purposes of ordinary consumption. Such a construction of the contract never entered into the contemplation of the parties, is not warranted by a fair interpretation of the words used, and. would work special injustice to those who have paid their money upon the faith of the indemnity held out by the contract.

      Mr. David B. Ogden, in reply.
    We abandon the second point presénted for argument on the part of the defendants, believing that the court will, in all proba- . bility, be against us as to that. But upon the first point, we confidently rely. If the insurers are protected by the laws of the land, they are to be considered as justly protected; and no argument drawn from the adventitious circumstances of any particular case, can weigh with the court in expounding the terms of a written agreement.,
    • The defendants are not bound beyond their owii express contract, as contained in the policy ; and the whole question in the case is confined to the construction to be put upon the word “ storing,” as used by the parties. What are the facts of the case 1 The plaintiff has effected insurance upon a “ three story brick building” situated at the intersection of two certain streets. TT . He appropriates a part of the building insured as a grocery store. In the cellar of this building he deposits a quantity of spirituous liquors and oil, and carries them from their place of deposit into his store for sale. Is not this “ using or appropriating” the building insured “ for the purpose of storing therein articles denominated hazardous in the proposals,” attached to the policy 1 The goods are stored in the cellar, and carried from thence to the shop, from time to time, for the purposes of sale, as occasion may require. This is an obvious violation of the very words of the contract, and the court cannot restrict the meaning of the terms by any inquiries as to the quantity of goods thus stored in each particular case. The construction to be given to the words is matter of law, and that construction must be uniform and consistent, else the meaning of the terms used may vary with different cases, and be wholly uncertain and indefinite. If the construction depends upon the quantity of goods reported, or the purposes for which they are kept, then what is the quantity, and what are the purposes,, which may amount to a storing within the meaning of the policy 1 By the rule contended for, the present plaintiff may recover, while another grocer, more extensively engaged in the business of his vocation, may be totally unprotected. Such an interpretation of the word is altogether too loose and vague to be adopted by any court in fixing a legal meaning upon the terms of a written contract. But it is said, that the construction contended for by the defendants may vitiate a policy upon the residence of a private individual. If this were to be the consequence, it cannot vary the' matter; for no private individual has a right to increase the risk of the underwriter, by storing spirituous liquors in his dwelling house. But there is an obvious distinction between the case of a grocer and that of a private individual, The former keeps his goods for the purposes of sale, whereby the risk is greatly enhanced, while the latter keeps a mere private stock for his own use.

      We are told however, that the defendants knew that a part of this building was to be used as a grocery, at the time they made insurance. There is no proof of this. But if the fact were so> does it follow, because a building is to be used as a grocery, that spirituous liquors are to be stored therein by the permission of the underwriters 1 They may perhaps allow the grocer to keep such articles as enhance not the risk; but they give him no permission to keep hazardous articles by reason of his occupation. But there is no authority given, by any express words, for the keeping of a grocery even: the power is derived from implication, and you cannot, by implication, extend the obligation of the insurers beyond the terms of their agreement. This would be unjust, as well as illegal, for they may be compelled by this means to assume a risk they never contemplated, without any adequate premium.
   Oakley, J.,

after stating the facts of the case.

The principal question arising on the bill of exceptions taken at the trial, is, whether the above state of facts suspended the policy, so that it did not cover the building at the time of the fire, by virtue of the clause contained in it, which provides, in case the building insured should at any time, during the continuance of the policy, be used for the purpose of carrying on any trade, business, or vocation denominated hazardous or extra-hazardous, as specified in the memorandum of special rates in the proposals annexed to the policy, “ or for the purpose of storing therein any of “ the articles, goods, or merchandise, in the same proposals deno- “ minated hazardous or extra-hazardous, unless specially pravid ed for in the policy, or subsequently agreed to by the defendants “ in writing; that then, so long as the same building should be so appropriated, applied, or used, the said policy should cease, and be of no force or effect.” In the proposals annexed to the policy, oil and spirituous liquors are denominated hazardous articles.

It is contended, on the part of the plaintiffs, 1st. That the building being used as a “ store,” and the business of keeping a grocery store not being denominated hazardous, and therefore not prohibited by the policy, the plaintiff had a right to carry on that • • business, and to keep all such articles as are usually kept in such stores.

2. That if not, the keeping of the liquors and the oil, under the circumstances, was not á storing, within the meaning of the contract.

Where the insurance is general on the building, or where a store in general terms is insured, the true construction of the policy undoubtedly is, that all kinds of business may be carried on, and all kinds of goods or merchandise kept in the building, except such as are expressly prohibited. Any other construction would render all the restrictions in the policy inoperative and void. Some efficacy must unquestionably be given to the clause which prohibits the storing of hazardous articles, rvithout the written consent of the defendants. If the right of storing such articles foEowed as appurtenant to the general business of a grocer, it would equally follow as appurtenant to that of a commission merchant. His business, as such, would not be prohibited by a policy like the present ; and yet it might consist entirely in storing the hazardous or extra-hazardous articles enumerated in the policy.

Thus it will be seen, that upon the construction contended for by the plaintiff, a case can scarcely be imagined in which the prohibition in the policy, against the storing of such articles, could be applied. The true meaning of the contract seems to me to be very clear and simple. The plaintiff is authorized to keep any store in the building insured, provided in doing so he does not use any part of it for the purpose of storing certain articles of merchandise, which are denominated hazardous or extra-hazardous in the policy itself.

The only question then is, whether the keeping of the casks of oil and spirituous liquors in the cellar of the building, in the manner in which they were kept, is a violation of the prohibition in the policy.

In the present case it appears, that the oil and liquors in question were purchased by the grocer, and deposited in his ceEar. The cask of oil was unbroken, but the casks of liquors were partly drawn out. These casks were deposited in the cellar for the purpose of replenishing his store from time to time, as occasion might require. They constituted then a part of his ordinary stock in trade as a retail grocer, and I am of opinion, that the keeping of them under the circumstances, and for the purposes of ordinary retail, and not in universal quantities, is not a storing of them, within the meaning of the clause in the policy under consideration.

It is difficult, perhaps, to affix any precise meaning to the word storing, as used in the policy. Its import is in a degree vague and uncertain. Without undertaking here to define it, it is sufficient to say, that it does not, in my judgment, reach a case like the present,

Judgment for the plaintiffs.

[E. Anthon, Att'y for plff. C. C. King, Att'y for defts.]

Jfote.—One of the principal points of defence relied upon by the underwriters, at the outset of this cause, rested on the ground, that the plaintiff had materially increased the risk, after effecting the insurance, by dividing off 20 feet of the rear of the lot upon which the building stood, at the distance of 75 feet from the house, and erecting thereon a carpenter's shop. This point was presented to the court at the trial, and insisted on as a substantial ground of defence; but the judge charged the jury, that if they considered the risk to be enhanced by the erection of the carpenter’s shop, they would find a verdict for the defendants. The jury found, however, that the risk was not thereby increased, and the defendants, therefore, did not make this a point of defence upon the argument at bar.

The defendants also offered to prove by pa.ro!, that it is the custom among underwriters, whenever they insure a grocery, to exact a higher premium than for an ordinary building. But upon the question being objected to, it was withdrawn ; the presiding judge intimated, however, that the inquiry was improper.

The counsel for the plaintiff in the course of the trial, upon the examination of the surveyor of the defendants, asked him, “ whether the plaintiff did not inform him, at the time the survey was made, that the store in the building was intended for a grocery ?” This question being objected to was overruled by the judge, and an exception taken to his opinion by the counsel for the plaintiff But this exception was not afterwards brought forward, or in any way agitated upon the argument before the whole court.

This cause Was subsequently carried into the Supreme Court by writ of error, where the judgment of this court was affirmed.


source: Caselaw Access Project

author: The Court,

license: Public Domain

text:
    Peter Ballingall versus James Burnie.
    Oct. Term, 1828.
    Where a defendant, in an action of assault and battery, has been held to bail without affidavit, and without an order of a judge for that purpose, to an amount exceeding $500, the court upon application will order the bail to be reduced to that sum.
    The defendant was arrested and held to bail in the sum of $10,000, in an action of assault and battery, without any order for that purpose, and without any affidavit on the part, of the plaintiff upon which such order could be granted.

      Mr. E. Wilkes, on the part of the defendant,
    nowmoved, that the bail-bond should be set aside and cancelled, or that the bail should be reduced to $500, the amount fixed by the rules of the court in ordinary arrests of the kind. He said, that in cases where there was no affidavit, or where the affidavit was defective, or not duly filed, or where the sum sworn to is not endorsed on the writ, the court would discharge the defendant on common bail. [ Tidd’s Prac. 165.]

      Mr. Hugh Maxwell, contra

    insisted, that the affidavit to hold to bail might now be made, and all irregularities of proceeding cured by a subsequent compliance with the rules of the court. He proposed to file such an affidavit, and to show the court that this was a proper case for heavy bail, and for the exercise of its discretion. The ordinary sum of $500 would leave the plaintiff almost without a remedy, and if the irregularities of the first step could not be cured, serious injury would result to the plaintiff.

      Mr. Wilkes, in reply,
    contended, that the proceedings were oppressive in themselves, and a contempt of court. That the affidavit to hold to bail would now come too late, or at all events, would only justify the holding to bail in the ordinary sum of $500, [Bunting v. Brown, 13 John. R. 425.]
   The Court,

on a subsequent day, ordered the bail to be reduced to $500, and that the bail should be discharged as to the excess beyond that sum.

[H. and E. Wilkes, Att'ys for the deft. W. P. Hawes, Att'y for the plff.]


author: Oakley, J.

text:
    Austin versus Dewey.
    Oct. Term, 1828.
    A seaman, charged with disobedience of orders and mutinous conduct, was voluntarily discharged from the ship by his captain, who expressed regret for the difficulties which had occurred, and promised to pay the seaman his wages. In an action brought by the latter against the master, it was held, that the captain’s promise operated as a waiver of any forfeiture of wages by the seaman, for disobedience of orders during the voyage.
    Certiorari from the Marine Court. The present defendant brought an action in the Marine Court against the plaintiff, as master of the ship Savannah, to recover the amount of his wages, as a seaman on board that vessel.
    The defence setup was disobedience of orders and mutiny on the part of the seaman, and desertion of the ship before her cargo was discharged.
    This defence was met by proof, that the seaman left the vessel with the captain’s- permission, who promised, after the arrival of the ship, to pay him his wages, and expressed regret for the difficulties which had occurred on the passage.
    The cause was tried before the justices of the Marine Court, without the intervention of a jury, and judgment being rendered in favour of the plaintiff, the defendant below brought the cause into this court, by certiorari.

      Mr. Gerard, for the captain,
    went into an examination of the testimony to prove the facts as to disobedience of orders: but as they are not noticed in the opinion of the court, they are not here set forth. He contended, that the shipping articles were conclusive evidence of the contract between the parties: [Abbot on

      Ship. 472.] and that seamen, by disobedience of orders, forfeit their wages. [He cited Abbot, 456, 7. and the act of Congress, of July 20, 1790.]

      Mr. Clizbe, for the defendant,
    examined the testimony at large, and the points of law. He contended, that the defence being founded entirely upon a clause in the agreement between the master and seaman, is not to be favoured, because the latter can hardly be supposed to be acquainted with the extent of his obligations. For disobedience of orders, he is liable to punishment, and the court will not willingly superadd another. [He cited 2 Mason’s Rep. 556.]
   Oakley, J.

The defendant in error sued the plaintiff in error in the Marine Court, for his wages as a seaman on board the ship Savannah. The defence to the action rested on the ground, that the seaman had been guilty of disobedience of orders and mutinous conduct during the voyage, and that he had left the ship before the end of the voyage, without the permission of the captain.

It is not necessary to consider, whether any act of disobedience or mutiny, on the part of the plaintiff below, was proved, or whe- • ther such act, if proved, worked a forfeiture of his wages. It sufficiently appeared, from the evidence in the case, that after the vessel had arrived at New-York, the captain voluntarily discharged Dewey from the ship; that he expressed his regret that any difficulty had occurred during the voyage, and promised to pay him his wages. Such a promise by the captain, under the circumstances of the case, we think operates as a waiver of any forfeiture of wages by disobedience of orders, during the voyage. The court below appear to have rested their judgment on this view of the case. We think they were right, and that their judgment must be affirmed.

' Judgment affirmed.

[Ira Clizbe, Att'y for the deft, in error.]

[Henry M. Western, Att’y for the pl'ff in error.]


author: Per Curiam.

text:
    The People, ex relatione James R. Whiting, versus James Godfrey.
    Oct. Term, 1828.
    In an indictment, under the act to prevent forcible entry and detainer, [1 B. L. 96.] the defendant may be convicted of forcible'iietoiner only.

    In aprosecution of this nature, the title to the premises, as bétween the defendant and the relator, cannot be inquirediinto; although the latter is bound to set forth his title, so far as to show himself to be within the provisions of the act. That title may be controverted by the defendant, but he cannot set up his own as a ^substantive matter of defence: because the question of title cannot be tried in this action.
    The defendant in this case, was tried on the 4th day of September, 1828, before Mr. Justice Hoffman, on an indictment found by a jury, impannelled under the act entitled,‘ an act to prevent forcible entry and detainer.” [1 R. L. 96..]
    At the trial the relator, for the purpose of showing his title to the premises in question, and his possession thereof, offered in evidence, 1. A lease from Peter Ogilvie to one William Peet, of the lot and premises known .as 221 Delancey-street, in the city of New-York. This lease was for a term of 21 years, from the first day of October, 1825, reserving a rent of fifty dollars per annum, and was duly recorded in the office of the Register, for the city and county of New-York, on the 21st day of April, 1826.
    2. An assignment of this lease from Peet to one Newcomb, for the consideration of $600, dated the first day of May, 1826, and recorded on the 13th of March, 1827. On this assignment was endorsed a condition or defeasance, by which it was agreed, that upon the payment of the last-mentioned sum by Peet to Newcomb, on or before the first-day of the July next following, the assignment was to be void. This assignment was recorded on the 13th of March, 1827; and on the same day Peet released the defeasance to Newcomb.,
    3. An assignment of said lease by Newcomb to one Scott, on the same 13th of March, and from Scott to the relator, on the first day of September following, for the consideration of $775.

      4. Various receipts for rent, paid by the relator to Ogilvie. The plaintiff then called one Henry Thison, as a witness on his part, who testified, that shortly after the assignment of said lease by Scott to Whiting, he, as the agent of the relator, and by his request, took possession of the premises in question, and informed the tenants thereon, that they were no longer to pay rent to Scott, but to Whiting; and the witness afterwards collected the rent from several of the tenants for the relator.
    He also further testified, that three or four of the agreements for rent made between the tenants and Scott, were handed over by the latter to Whiting at the time of the assignment. That a lower backroom of the premises had been leased to one Badeau, who abandoned it in January, 1828, and that the defendant, some time afterwards, teas found in the possession of it.

    In the month of March following, the witness, as agent of the relator, ordered the defendant to leave the room; but he refused, and said, that “ no man should enter it but over his dead body.” The defendant continued in possession of the room until the first of May, 1828, when the lease of the other tenants expired. He then took possession of the entire premises, claiming title thereto. The witness at a subsequent period again attempted to take possession for the relator, but was resisted by the defendant, who again said that no man should dispossess him but at the expense of his life. The defendant insisted upon his right to retain possession, and claimed title to the premises: and the relator since that time had never derived any benefit from the same.

      Elisha Morrell, Esq. one of the Justices of the city of New-York, then testified, that on the first day of May last, at the solicitation of the relator, he went to the premises, and there saw the defendant, who claimed title thereto, and insisted that the relator should leave the same.
    That he (the witness) enquired as to the force—recorded it, and imposed a fine of $5 upon the defendant
    Upon this state of facts the relator rested his cause.
    The defendant then offered to prove, that the premises were worth $1500 : that he had paid a full consideration, for the same, and that they were conveyed to him by Peet, by deed bearing date the 18th day of October, 1826, for the consideration of ^1400 ; that he had taken peaceable possession of the premises, and held them under a good title.
    The relator objected to this evidence; but stated that he would show that the title set up by the defendant was fraudulent. The presiding Judge, decided that the question of title could not be investigated in a trial of this nature; that the relator being only a mortgagee of the lease, and the defendant having come peaceably into possession of the premises, claiming title under the deed of Peet, no further evidence was necessary on the part of the defendant, and that he should direct a verdict for him.
    The defendant then read the deed from Peet to him, which appeared to have been recorded on the 19th of October, 1826 ; and offered to prove, that he had paid the consideration named in it, and that the transaction between himself and Peet was bona fide. But this evidence the presiding Judge refused to receive.
    The Judge then charged the jury, that the question of title was not to be taken into consideration by them ; but that they were to enquire into the force, and might convict the defendant of forcible entry and detainer, or of forcible detainer only; and stated, that whatever might be their verdict, the court would regulate it according to the law of the case.
    The jury found that the defendant was not guilty of forcible entry, but loas guilty of a forcible detainer.

      Mr. F. A. Tallmadge, for the defendant,
    now moved for a new trial, and contended, I. That the jury having found, that the defendant was not guilty of a forcible entry, but on the contrary, that the entry was peaceable and under claim of title; the subsequent detainer could notin judgment of law be deemed either forcible or unlawful. [Vin. Ab. 383. F. n. Also p. 385. n. Coke Lit. 257. (notis.)]
    II. If the defendant was peaceably in possession, neither the relator nor the rightful owner himself could forcibly eject him without falling under the penalties of the statute. This statute was not framed for the purpose of settling questions of title, or the right of possession: but merely to prevent the exercise of force obtaining possession. [11 John. R. 504.]
    But if the title had any bearing upon the questions before the jury, then the defendant ought to have been permitted to show what his claims to the premises actually were. The relator was permitted to show his title, and was not restricted to proof of possession merely. The defendant, on the contrary, relying upon the intimation which fell from the Judge, that there could be no conviction for a forcible detainer, where the entry was peaceable, and under color of title, was prevented from showing what the strength of his title was.
    But the title cannot be enquired into, and the entry being peaceable under colour of title, the defendant had a right to resort to force if necessary to defend that possession, which he had already lawfully taken.
    III. The relator was never in such an exclusive possession of the premises, as would render the acts of the defendant a violation of the statute against forcible entry and detainer. He was the mere mortgagee of a lease, and never took actual possession of the premises; but relies upon a constructive possession, derived from the attornment of the tenants. It is a sufficient answer to this suggestion, that the defendant never attorned to the relator, and never acknowledged his rights. Besides this, the mortgagor can never be ejected summarily, but is always entitled to notice to quit. [4 John R. 186.] The defendant is as much entitled to protection as the relator: for if he were a mere lessee at will, he could have the benefit of this act, although he could not maintain trespass against a person claiming title. But his right was prior in time to that of the relator, and there is no proof that his possession did not precede that of the other party; he was fully justified, therefore, in the course he pursued, and had perfect right to defend his peaceable possession. [2 Hawk. Ch. 64. 4 John. 180. 3 Term. R. 292. 3 Blac. Com, 174. 6 Bac, Abr. 566.

      IV. If the defendant entered peaceably, he cannot be held to detain unlawfully. There can be no indictment without force, [ Cro. Jac. 144.] and the jury under the charge of the Judge ought to have acquitted the defendant. Upon this point the charge of the Judge was entirely correct: for although the Supreme Court has decided, that there may be a conviction under this act for a forcible detainer, their decision applies only to cases where the entry was wrongful, and without colour of title. The finding of the jury was against the charge of the Judge, and against law: the defendant is therefore entitled to a new trial.

      Mr. Barnes, for the relator, (with whom was the relator in propria persona.)

    The object of the statute under which this indictment was found, was to prevent persons from doing themselves justice, by the employment of force, even although they might have title. The question of title therefore does not arise under this proceeding, and the enquiry relates exclusively .to the possession. It is immaterial whether the relator was the owner in fee, or mortgagee merely : for he was at all events mortgagee in possession, and that is the only subject of enquiry. The defendant confined his offer to an investigation of his own title, without attempting to adduce proof, that he ever had any possession of the premises, anterior to that of the relator. This could not be permitted in this proceeding, and the Judge was right in excluding the testimony. [11 John. R. 504. People v. Richard, 8 Cowen 226.

    The enquiry then, in the first place, is limited to the question of possession; and upon that point the case is clearly with the relator. It is not pretended by the defendant, that he ever had possession of any part of the premises, until the room occupied by Badeau was abandoned by him. This was at a period some time subsequent to January, 1828. Now, the lease of the entire premises was transferred by Scott to Whiting on the first day of September, 1827. Immediately after this, Whiting gave notice of the transfer to the tenants (of whom Badeau was one) and receivéd rent-from them. He took actual possession by his agent, and he had
      legal possession through his tenants; for the possession of the tenant is that of his landlord.
    The defendant does not pretend to hold under Badeau, but remits himself back to an anterior title, upon which" he pretends to rely, instead of possession. It is no reason for a new trial, that the relator was permitted to exhibit his title; for it merely shows, that he proved more than lie was bound to prove, and more than was required by law.
    II. The relator having shown himself in such possession as the law requires, and having proved himself entitled to the protection of the statute, the only question is, whether there may be a conviction for a forcible detainer merely, where the entry is peaceable.
    It is conceded by the counsel for the defendant, that the law is well settled that there maybe a conviction for a forceable detainer: but he restricts it to a case where the entry was unlawful.
    The jury in the present instance have merely found, that the entry was not forcible, and from that finding, the court are not to deduce the inference that the entry was lawful. The evidence clearly shows that it was illegal, and the title is set up as a mere colour for the wrongful acts. The defendant entered after Badeau abandoned; if he held under Badeau he would have been the tenant of the relator, and might have been ejected under the act relative to landlords and tenants. But he claims title in himself, and the relator has resorted to the only expeditious remedy known to the laws. If this verdict be not permitted to stand, then every individual is exposed to the' hazard of finding his dwelling in the hands of a stranger, who may drive him to an action of ejectment to recover that possession of which he is so unjustly deprived.
   Per Curiam.

On an indictment for a forcible entry and detainer, it is settled beyond all question, by the decisions of our own courts, that the defendant may be convicted of a forcible detaineronly. [ The People v. Anthony, 4 J. R. 198. People v. Richard, 8 Cowen 226.]

In this case the jury have found the defendant guilty of a forceable detainer, from all the evidence spread before them; and ^e court have no disposition to interfere with their decision upon the questions of fact.

Although the title to the premises cannot be enquired into, in a prosecution of this nature, still the relator is bound to set forth his title so far as to show himself within the provisions of the act. The title of the relator may be controverted by the defendant, but he cannot set up his own as a substantive matter of defence. The question of title, as between the relator and the deféndant cannot be tried in this manner; but the latter, if his claim is paramount to that of the relator, must resort to an appropriate remedy to maintain his rights. [People v. Nelson. 13. John. R. 40. 8 Cow. R. 226.]

It is urged by the counsel for the defendjant, that he is to be considered as standing in the place of Peet, the mortgagor, and that he is, at all events, entitled to notice to quit, before any legal proceedings can be instituted to eject him. But the assignee of a mortgagor is not entitled to notice to quit; [Jackson v. Fuller, 4 John. Rep. 215.] and the defendant evidently intended to defend his possession at all hazards.

The reasons shown by the counsel for the defendant are not sufficient to induce the court to disturb the verdict of the jury, or grant a new trial.

New trial denied,

[J. R. Whiting, the relator, for the People. F. A. Tallmadge, Att'y for the def't.]


text:
    Lewis K. Bridge versus The Niagara Ins. Co. of New-York.
    Dec. Term, 1828.
    A contract for the benefit of a third person made without his knowledge or authority, is a binding contract on the promisor; and if subsequently adopted by him for whose benefit it was made, it may be enforced by him.
    The plaintiff in this case was a general agent for a merchant residing at Carthagena, who was in the practice of making shipments to New-York. On the 19th of February 1827, the plaintiff, without any orders from his principal, caused an open policy of insurance for §5000 on goods laden or to be laden on board any vessel from Carthagena to New-York, on account of his principal, to be executed by the defendants, who received the premium. On the 17th of February the agent wrote to his principal informing him of his intention to effect said policy, and on the 23d of March following the principal replied to his letter, and conditionally affirmed his act.
    On tire 21st of February, two days after the policy was effected, a loss occurred, by the perils insured against, on goods shipped by the principal on board the brig Mary from Carthagena to New-York.

      Held, that they were covered and protected by the policy: that the defendants having contracted with the agent for the express benefit of tie principal, and having received the premium, could not be permitted to show any want of authority in the agent, and that the principal having adopted the act of the agent, could enforce the contract in the name of the agent.
    This was an action upon a policy for insurance tried before Mr. Justice Hoffman. The policy was an open one in the usual form, on cargo for $5000, dated the 19th day.of February, 1827, and subscribed by the defendants. That part of it, which is deemed material to this case, was as follows, viz :—
    “ Cargo. By the Niagara Insurance Company of New-York; “ Lewis K. Bridge, on account of dimos Foster, of Carthagena, or “ whomsoever it may concern, do make insurance, and cause to “ be insured, lost or not lost, at and from Carthagena to New- “ York, upon all kinds of lawful goods and merchandises, laden or “ to be laden on board the good vessel or vessels” &c. “ beginning “ the adventure upon said goods and merchandises from and im- “ mediately following the loading thereof on board of the said “ vessel at Carthagena aforesaid, and so shall continue and “ endure until the said goods and merchandises^ shall be safely “ landed at New-York aforesaid.” “ Having been paid the con- “ sideration for this insurance by the assurer or assigns at and after «the rate of one and a half per cent, in specie, or merchandise, or « both; and in case of loss, such loss to be paid in thirty days, “ after proof of loss and proof of interest in the said-.” &c. “ In case of loss, the same to be paid L. K. Bridge.
    The declaration contained two counts on the policy, both alleging the lading of the goods and merchandise on board the brig Mary, and the loss of the vessel and cargo by perils of the sea, on the 21st day of February, 1827, on her voyage from Carthagena to New-York: one count averring the interest to be in Amos Foster ; the other in Amos Foster and John B. Gaicano.
    There were also general counts of indebitatus assumpsit for work and labour: for money lent and advanced : for money paid and expended : for money had and received, and upon an account stated.
    The defendants pleaded the general issue; and at the trial admitted that a bill of lading and invoice of 802 hides, 50 tons and 1332 lbs. of fustic, ten sacks of ipecacuanha, six hundred and forty castillanos of gold dust, twelve hundred and forty-two Spanish dollars, five hundred and thirty-six dollars in old gold, three thousand six hundred dollars in Columbian doubloons, shipped by Charles Dean on board thd Brig Mary, (F. Desaque Master,) to be delivered at New-York to the shipper on board, or his order, and dated on the 16th and 18th days of February, 1827, had been duly presented to them by the plaintiff among his preliminary proofs, on the 17th of July following. Attached to the invoice was an affidavit of the plaintiff, dated on the 19th of May, 1827, showing that the effects described in the bill of lading were the joint property of Amos Foster and J. B. Gaicano, and that no other person had any interest in the same.
    The defendants also admitted, that an affidavit of Charles Dean (the consignee of said goods, who was on board the vessel at the time of her loss) sworn to before the American Consul at Carthagena, setting forth the particulars of the shipwreck of the Mary, on the 21st day of February, 1827, bad also been duly presented by the plaintiff among the preliminary proofs. This affidavit stated, that the vessel was cast away on the coast of South America, on a shoal or rock called, “ Baxio Nuevo that the crew, to* gether with the deponent, proceeded in the boat for the main land, taking with them all the gold dust, doubloons, and dollars which had been shipped on board the brig. That they reached that part of the main land called the “ Musquito Shore,” and then attempted to proceed to St. Johns, by keeping along the coast; but owing to the difficulties in their way, they were] compelled to haul the boat upon the shore, bury the dollars in the sand, and distribute the gold and gold dust about the persons of the deponent and the officers of the vessel, for safe carriage, and to prosecute their journey on foot. That while on their way, two of the seamen gave out, and were left behind; but the deponent, the master, and the rest of the crew afterwards arrived at Corn Island, where a small vessel was chartered, in which the mate went back to the place where the dollars were buried, in pursuit of the men and the money left behind. On his arrival there, he found, by some lines written on a slate by one of the two seamen, that they had launched the boat, taken the dollars on board, and proceeded down the coast in pursuit of the master, supercargo, and crew: but these seamen were never heard of again, nor was the money ever recovered. Every exertion was made to save the vessel and cargo, and nothing but absolute necessity induced them to leave the dollars buried on the shore. The captain, deponent, and crew afterwards arrived at St. Johns, and there a regular protest was made, detailing the loss of the Mary.
    The plaintiff then proved, by the deposition of Dean, and the testimony of other witnesses, that the goods specified in the invoice and bill of lading, were shipped on board the Mary; that they belonged to Mr. Foster and John B. Gaicano jointly, and that the vessel was lost as stated in the foregoing affidavit. He also proved the execution of the policies, and that the plaintiff had been the agent of Amos Foster in New-York since the year 1826, and had frequently effected insurances for him. It also appeared that Dean was a clerk in the employment of Foster, (who was a general commission merchant at Carthagena, and in. the constant habit of making shipments to New-York,) and that the property saved from the wreck (amounting to $3,661 and seven reals,) was delivered to the plaintiff.
    The plaintiff also read in evidence a letter from himself to poster, dated on the 17th of February, 1828, (and which was received by him on the 12th of March following,) containing the following sentence: “ The insurance for Mr. Fabre will be attended to, and you may calculate on having a policy on your own account for $5000 on merchandise or specie, by vessel or vessels, so that you may ship with safety as to insurance.” The news of the loss of the Mary reached Carthagena on the 18th of April, 1827.
    The defendants, on their part, did not question the occurrence of the disaster, nor the correctness of the preliminary proofs, otherwise than that they were not such as would entitle the plaintiff to interest, even if he should recover. But the defence was placed upon the grounds, that the defendants never became insurers on the cargo of the Mary. That Foster had given orders for insurance in Nov. 1826, to be effected on the Bunker-Hill or Athenian. That under those instructions the policy had been effected, and it did not apply to the cargo of the Mary: for the insurance of which, Foster had given instruction to a Mr. Benjamin Marshall.
    The defendants then called upon the plaintiff to produce two letters .from Foster to the plaintiff, one dated Nov. 28th, 1826, the other on the 23d of March, 1827. The plaintiff’s counsel declined to produce those letters, upon the ground, that they had once been furnished to the defendants, who had taken copies of them.
    The defendants then proved and read a copy of the first letter in evidence, which was as follows:
    “ Carthagena, 28th of Nov. 1826.
    Mr. L. K. Bridge,

      Dear sir—I wrote you per Bogota, requesting you to insure for $3000, more or less, for and on account of Mr. Augustus Fabre, of Marseilles. I write this for fear the Bogota may meet with an accident, and I now wish you to open a policy for me, as I expect to ship some cash to you by the Bunker-Hill or Athenian,
      when she comes in, to be forwarded to Mr. N. Foster. Please insure, as value may appear on either vessel.”
    (Signed) Amos Foster.
    rrn , . , , . 1 he plaintiff s counsel then insisted, that the second letter of the 13th of March, 1827, was also to be considered as given in evidence by the defendants, and the presiding judge ruled the-point in his favour. This last-mentioned letter, after speaking upon a variety of subjects of business, concluded as follows: “ I “ intended to have shipped some hides to Mr. Judd by this vessel, “ as a remittance, but could not get them ready. Shall do so by “ the Athenian, which leaves this port in all of a week.” “ For “ the insurance on policy of $-3000, you will consider, that I have “ shipped in the name of Mr. Charles Dean, or whom it may con- “ cern, on board of the brig Mary, 11,000 dollars of produce and 15 specie consigned to him. She left this on the 17th of Febru- “ ary, and I trust she has arrived. If not, you will notify the in- “ surers of the circumstance of her having the property on board. “ You will ascertain by calling on Mr. Benjamin Marshall, to whom “ I had written to have 11,000 dollars insured, and for fear that you “ had not made the policy for the $5000, induced me to write to “ him to effect for $11,000. Now, should she have arrived safe, “ or if Mr. Marshall has effected the insurance as requested, and “ she lost, or not in, you will then consider that $5000 of the pro- “ perty, or more, if so expressed in the policy; and if the vessel is in cc safe, you may cancel the policy, and charge the expense to my ac- “ count.”
    These two letters contained all the orders, which the plaintiff had received from Mr. Foster to make insurance, and all the information which he had on the subject. It appeared that the defendants, on the 24th of January, 1827, had effected another policy in the usual form for the plaintiff, from which the following is an abstract:
    “ Cargo. By the Niagara Insurance Company of New-York. “ L. K. Bridge, on account of whomsoever it may concern, do make 5C insurance, and cause to be insured, lost or not lost, at and from u Carthagena to New-York, upon all kinds of lawful goods and “ merchandises, laden or to be laden on board the' good vessel or « vessels,” &c. “ the said goods, &c. hereby insured, are valued at «-» bavin »■ been paid the consideration for this insurance by the assured or assigns, at and after the rate of one and three quarters per cent, on specie or merchandise, (subscribed) “ iwenty“five hundred dollars.” The premium paid on this policy was seventy-five dollars, and on the same, there "was the following memorandum :
    “ It is agreed that $290 shall be considered as insured on this “policy at and from New-York to Carthagena, in brig Bunker-Hill, “ captain Smith, at one and three quarters per cent., and that the “ same shall, when safely arrived, be considered as closing this po«Jicy. New-York, 29th March, 1827.”
    The plaintiff then produced two bills of lading in evidence, dated on the 12th of January, 1827, at Carthagena, signed by Charles R. Shipman, master of the brig Athenian, acknowledging the shipment of 'Spanish dollars, by Amos Foster, on board of said vessel, to be delivered to the plaintiff at New-York, he paying one per cent, freight. One bill of lading was for one thousand dollars, and the other for one thousand and ten dollars.
    The defendant closed his defence by reading the following letter from Mr. Foster to Benjamin Marshall.:
    “ Carthagena, ISth February, 1827.
    “ Mr. Benjamin Marshall, New-Yoik—
    “ Hear Sir,—I now take the liberty of requesting you to “ effect insurance on account of Mr. Charier Dean, 01 whom it “ may concern, on ten thousand (say $10,000) in gold, silver, “ hides, fustic, and specie, (an invoice oi which will go forward “ by the vessel,) or as value may appear, on board oí the Herma- “ phradite brig Mary, of Philadelphia, formerly of New-York, “ captain F. Desauque, which leaves this on or about the 20th “ instant, as she is now loading. I should send you a draft on “ my former correspondent for amount of premium, but as the vessel “ and cargo will be consigned to you by Jilr. C. Dean, who goes out “in the vesel, I think you will have no objection to advance..the
      “ amount. I write this to go by the way of Jamaica and Santia- . “ go de Cuba, and hope it will arrive in time.”
    On the recommendation of the judge, a verdict was taken by consent for $4,500 in favour of the plaintiff, subject to the opinion of the court upon the case, and an adjustment of the loss by Mr. O. H. Hicks, under the direction of the court, with liberty for either party to turn the case into a bill of exceptions.
    The cause was now argued by Mr. Di Lord and Mr. D. B. Ogden for the plaintiff, and by Mr. Geo. Griffin, for the defendants.
    For the defendants, it was contended,
    I. That from all the evidence in the case, it appeared that the plaintiff was never authorized by Mr. Foster to effect any insurance on his account, except by his letter dated the 26th of November, 1826. An insurance, in obedience to that order, for $2500, was effected by the. plaintiff: but thatpnsurance was intended to cover a shipment by the Bunker-Hill or Athenian, consigned to Foster; and it could not be applied, without the consent of the assurers, to a different shipment, consigned to a different person. [Phil. on In. 59, 60. 63, 64.] If the first insurance was made by virtue of the letter dated in November, then the letter had performed its office ; it was functus officio, and could not be received for any other or a different purpose.
    The letter of the 26th of November authorized an insurance on cash, consigned to Foster, and the first insurance was on cash. But the subject lost, consisted of an assorted cargo of hides, fustic, ipecachuana, dollars, gold, gold-dust, &c., consigned nominally to Charles Dean, but in reality to Benjamin Marshall. Besides this, Mr. Foster never authorized an insurance in the form adopted by the plaintiff, who has seen fit to make the loss, if any, payable to himself and now brings the action in his own name.
    II. But suppose that the policy was not made under the letter of November 26th; the plaintiff in that case cannot recover, ..because the policy was then made without any authority, and there has been no subsequent ratification of the plaintiff’s acts by Fos1 i. v ter, the real party in interest. The plaintiff himself cannot recover in his own right, for he has no interest in the subject; and if th® insurance was made for another without his authority or knowledge, and if the agent’s acts have not been adopted by the . principal, then the agent cannot recover in behalf of his principal.
    The plaintiff does not pretend -to have had any express original authority to effect insurance on the cargo of the Mary, nor does he prove any general authority to effect insurances for F osier. The presumption of such authority is taken away by the letter from Foster to Marshall, in which he directs Mm to effect the insurance.
    No general agent has any authority a priori, to effect insurances for his principal, which will bind him, without his subsequent assent.' If there be a ratification of the act, then it will be good, because the pricipal will be bound; Suppose that the plaintiff in this case had paid Foster’s money to the defendants, and that Foster had repudiated his acts; could not Foster have recovered his money back from the defendants 1

    There can be no presumption of a ratification in such a case, but the ratification must be .explicit and unqualified. It must adopt the whole act; for the principal is not at liberty to select that which may be beneficial, and reject the part which may be injurious. As between the principal and his agent, the rule may be less rigid; but as between the principal and third persons, it goes to this extent.
    In this case, Foster has never adopted the act of the plaintiff in any explicit or unqualified manner. He had heard of the insurance on the 23d of March, 1827,. and in his letter to the plaintiff of that date, instead of approving of his conduct in direct and explicit terms, he makes a fraudulent attempt to avail Mmself of the policy in case -oft a loss, and to evade the premium in case the vessel had arrived in safety. If the vessel had been safe, he would have charged the plaintiff with the premium, and would have disclaimed his act. The letter is framed with a studied and fraudulent ambiguity, applicable to any state of facts, and the court cannot consider it as any ratification of the plaintiff’s acts. If then, the policy was made without authority, and if the conduct of the plaintiff has not been ratified by Foster, there can be no recovery in this case. The law will not permit a stranger without interest to effect insurances for third persons without their approbation and knowledge, which shall be binding upon the parties. The contract is not binding upon the assured, and it cannot be enforced upon the assurers.
    III. The recovery in this case, if any be had, can be only for a partial loss, and there can be no allowance of interest.
    1. There was no abandonment, and there is no proof of at otal loss; but on the contrary, the evidence is positive, that a part of the cargo, amounting to $3,661, was saved and delivered over to the plaintiff. The recovery, therefore, must be for an amount to be adjusted by the referee.

      2. There can be no just claim for interest. It was the duty of the plaintiff to have liquidated his claim, when he presented his preliminary proofs ; for these proofs are mere matter of notice to the defendants. Interest would accrue after a demand and notice of the amount claimed; but here there were no materials put into the defendant’s hands, by which they ever could have made up the amount of the loss, but all the proof is vague and uncertain. The defendants could not tell the amount to be paid, and there cannot, therefore, be any allowance of interest. [1 John. Rep. B. 15. 5 Cowen’s Rep. 587.]
    Mr. Lord and Mr. Ogden contra, contended,
    I. That the policy in suit was, not effected for the purposes directed in Foster’s letter, of the 28th of November, 1826, nor under its particular authority. The order contained in that letter was carried into effect by the policy of the 24th of January, 1827, which was satisfied. There was no shipmént to which the present policy could be applied, except that by the Mary. The letter from Foster, dated in November, directed an insurance for $3000, more or less, for Fabre and himself, or cash in the Bunker-Hill, or
      Athenian, as value might appear in either vessel. Under that order the policy for $2500 was effected, by which $2210 were insured on the Athenian, and by the memorandum on that policy the remaining $290 were transferred to the Bunker-Hill. The Athenian and Bunker-Hill both arrived in safety, and the first policy was fully satisfied.
    The policy in suit, therefore, could not have been made under that title; it was for a different amount, and had no reference to .the particular subject of that insurance. In the absence of all proof, that the policy in suit was effected under the authority and order of Foster’s letter, the fair inference is, that the first insurance fulfilled all the objects of that letter, and was made in direct reference to it. The plaintiff in his letter of advice to Foster, dated February, 17th, 1827, made no mention of an insurance, on account of previous orders, but says expressly,'that he has effected an insurance for $5000, on vessel or vessels, under which Foster can thereafter safely ship his property to this country.
    The most that is proved upon the subject is, that the plaintiff stated to the underwriters after the loss, that the letters contained all his orders upon the subject of insurance. This shows, perhaps, that the present policy was effected without orders, but does not show that it was effected in obedience to the letter of November, 1826. It may, therefore, be considered as demonstrated, that the first policy was the one effected under that letter, and that Foster’s orders relative to that subject were obeyed, and the objects of all parties answered by that insurance. If the policy has once been applied to any particular subject, then we admit, that it cannot be subsequently applied to another; but we totally deny that the policy in suit has ever been applied to any property except that on board the Mary.
    II. The policy in suit, whether made with or without orders, took effect upon the property of Amos. Foster at risk, at and from its date : it therefore attached to the cargo of the Mary.
    What policy of the law is there which forbids A to make insurance for B, without orders, provided the name of the real party jn interest appears upon the face of the policy ? Why may not one gratuitously insure for another 1 The underwriter cannot complain, for he receives the premium, and understands the contract precisely when it is made; and he in general reduces it to writinsr
    T , . In this case, the policy was fairly made without fraud; the subject of the insurance was correctly described; the name of the real party in interest was disclosed; the defendants received the premium; the subject was put at risk, and was lost. Why then should not the defendants fulfil that contract of indemnity, which they deliberately made for a valuable consideration 1

    When A makes a contract for the benefit of B, the law will presume an assent on the part of B, until the contrary appears. [1 Pow. on Con. 138. 1 Fonb. Eq. 206.] And if one man make a contract for the benefit of another, the latter may adopt it when the contingency arrives. [Hagedorn v. Oliverson, 2 Maule & Sel. 485. 13 East, 274.] In such case Ais taken by the law to be the agent of B, and the latter may enforce the contract. [1 John. Rep. 139. 3 Bos. and Pul. 148. note (a) 10 Mass. R. 287.]
    III. The policy in suit was effected by the plaintiff as the agent of Amos Foster, a general commission merchant, who was in the habit of making shipments constantly; it was intended tobe applied to shipments on his account, and he, by bis letter of the 23d of March, 1827, adopted the act of the plaintiff in making the policy.
    The evidence shows these facts, and the insurance was made in the most general form by the agent for the benefit of his principal. It was not upon any specific property, but upon the property of Amos Foster generally, to be shipped from Carthagena to NewTork. No particular vessel was named or intended, as the object was to cover a particular amount of property on board any vessel. The act in itself was both prudent and proper, aud the agent gave immediate notice of it to his principal. The principal on the 23d March wrote to the agent approving his conduct, and adopting his act.
    The letter, it is true, is not as clear and explicit as might be desired ; but the ambiguity arises from the fact that the actual contingency was not clearly within the view of the principal. He did not doubt, that Marshall had effected the insurance, and his mind was turned towards a return of the premium in that case. ' One thing is certain, that at the date of that letter, he had not heard of the loss; for if he had he would have adopted the plaintiff’s act without hesitation. The letter then was written in good faith; Foster supposed himself chargeable with the premium, and desired that if the vessel were not in, or if Marshall had not insured,, that then this policy should stand. But if the vessel was in, or if Marshall had fully covered his property, he did not wish to pay two premiums for one risk, and under these views he wrote the letter.
    Could he -after this, if the vessel had arrived in safety, have disclaimed the act of the plaintiff, and recovered back the premium from the defendants, or the plaintiff1? If Foster intended to repudiate the act of Bridge, he was bound, both legally and morally, to state his objections when he heard that the insurance was effected. Not having done this, but on the contrary having-approved the act, and given directions for further proceedings upon the subject, Foster never could have maintained an action for the premium against any body. Not against his agent, for he had adopted his act; and not against the defendants, for they had earned the premium, the property having been at risk.
    IV. The defendants, being bound to pay the loss in thirty days after the proof of interest and loss, are chargeable with interest, after thirty days from the 17th of July, 1827 ; and the salvage being in the hands of the captain, they are as much chargeable with notice of the amount as the plaintiff. [Com. Dig. Pleader, c. 75.]
    This is not a case of unliquidated damages, for the amount becomes certain, when the salvage is deducted from the amount of the invoice. But this is a positive contract to pay by a certain day, and a jury can even in cases of partial loss give" interest. [Anon. 1 John. Rep. 315.] The rule for interest should depend on the default of payment, and if the defendants are liable to pay, why keep the plaintiff from his money for two years, without compensation 1 [The Renss. Glass Factory v. Reid 5 Cowen's Rep. 587.]
   Oakley, J.

This is an action on an open policy of insurance, dated the 19 th of February, 1827, on goods, &c. laden, or to be laden on board any vessel from Carthagena to New-York, on account of one Foster, who resided at Carthagena. The defence rests on two grounds : 1st, That the policy never attached upon the goods which were lost, and for which the plaintiff seeks to recover; and secondly, that if it was intended to cover such goods, it was never in fact consummated so as to become a binding contract on the defendants.

Under the first branch of the defence it is contended, that the policy was made by the plaintiff, in pursuance of the orders contained in the letter of Foster to him of the 28th of November, 1826. In that letter the plaintiff is directed to open a policy on cash, to be shipped from Carthagena, by the Bunker-Hill or the Athenian. The cash so shipped by the Athenian arrived ; and if the policy in question was made for the purpose of covering that adventure, it is quite clear, that it cannot now be applied by the plaintiff or Foster, to any other vessel or cargo, though coming within its general terms. On the part of the plaintiff it is contended, that a policy dated the 24th of January, 1827, and also made by the defendants, was the one opened by him, in pursuance of the' directions contained in that letter ; and without going into a detail of the facts of the case, it is sufficient to say, that I consider that the proof satisfactorily shows, that the position assumed by the plaintiff is the true one.

It appears, then, that the policy in question in this case was opened by the plaintiff, without any orders from Foster, with a view to cover any shipment to be made by him, coming within the general terms; that such a shipment was made in the Mary, and that'a partial loss of the cargo has taken place; and the question now is, whether the policy of the 19th of February is binding on the defendants.

It seems to be well settled, that a contract for the benefit of a third person, without his knowledge or authority, is a binding contract bn the promissor, and may be enforced by him for whose benefit it was made. [Schemerhorn v. Vanderheyden, 1 John. R. 139. 3 Bos. and Pul. 149. n. Arnold v. Lyman, 17 Mass. 40010 Mass. 287.]

It,can" therefore be no objection to the policy in question, that it was made without any instructions from Foster; for the plaintiff was Foster’s agent generally, and had been in the habit of frequently making insurances for him. The defendants, having made this policy, and received the premium, cannot be permitted to show any want of authority in the plaintiff to act for Foster. It follows, therefore, as a necessary consequence, that the the defendants are bound, imless Foster has disaffirmed the act of the plaintiff in such a manner as to discharge them from the contract. It appears that Foster, by a letter dated at Carthagena the 5th of February, 1827, gave directions to one Marshall to" effect an insurance of $10,000 on the cargo of the Mary, then about to sail for New-York. The plaintiff, on the 17th of February, wrote from New-York to Foster, that he intended- to effect a policy on his account generally for $5000, so that he might make any shipment with safety. On the 23d of March following, Foster wrote to the plaintiff that he had made a shipment by the Mary, and he instructs the plaintiff, if the vessel had not arrived, to notify the insurers that she had the property on board. He further directs him to ascertain from Marshall, whether he had effected any insurance on the vessel, and if he had, or if the vessel had arrived safe, he was instructed to cancel the policy, and charge the expense to his account.'

Such I understand to be the purport of Foster’s letter, and it amounts to a conditional affirmance of the act of the plaintiff in effecting the insurance. He declares his willingness to consider the policy as effectual if the vessel had not arrived, and his disposition to abandon it, if there had been a previous insurance, or if the -vessel was known to be safe. This conditional ratification may not have been altogether consistent with honesty and good faith: but the question is, whether it was such a disaffirmance of the contract made by the plaintiff', as to discharge the defendants from its obligations. The contingency on which the plaintiff was instructed to consider the policy as effectual, actually happened; the vessel had not arrived when Foster’s letter was received, nor had Marshall effected any insurance on her. It can scarcely he questioned, under such a conditional ratification of the contract, if the vessel hud subsequently arrived safe, that the defendants would have earned the premium, and that it could not have been recovered of them by the plaintiff or by Foster on the ground that the policy had never attached. If the policy, then, became binding on Foster, or the plaintiff, I see no reason why it should not be held to he binding ou the defendants. The intention of Foster to cancel the policy in certain events, which did not happen, cannot, I think, be construed a fraud on the defendants, so far as to release them from their contract, when they had fairly assumed the risk, and had received the premium for it.

I think that the plaintiff is entitled to judgment, the amount to be adjusted as is provided in the case.

Judgment for plaintiff.

[D. Lord, Att'y for the plff. G. W. Strong, Att'y for the deft.]

Note.—The Court decided, that the loss in this case was a partial one merely, and that the plaintiff was not entitled to interest. The underwriters could not make up the amount of the loss from the proofs before them ; they could no.t ascertain the sum to be paid; and where the plaintiff’s preliminary proofs ate thus defective as to the amount of the loss sustained, it would be inequitable to charge the defendants with interest.