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    William Forgay and John Conner, plaintiffs and respondents, vs. The Atlantic Mutual Insurance Company, and John W. Fowler, administrator, &c. of S. V. Peabody, and in his own right, defendants and appellants.
    1. All the owners of a ship separately authorized and instructed S. &. T. to keep their several interests in her insured, valuing her at a certain sum; each giving such direction separately, without reference to the interests of others. S. & T. obtained from the Atlantic Mutual Insurance Company a policy by which it insured them, by their firm name, in the sum of $9375, “on account of whom it may concern,” loss, if any, payable to S. & T. The sum so insured was the same proportion of the sum at which the vessel was valued in the instructions to insure, (three sixteenths,) as the interest of the plaintiffs and one F. in the vessel was of the whole. No disclosure was made to the company, at the time, either of the parties or the interests to be insured. A series of similar policies, covering three quarters of the valuation of the vessel, were also taken out by S. & T. in other companies. One third of the premium paid by S. & T. upon the policy issued by the Atlantic Mutual Insurance Company, was charged by them upon their books to each of the plaintiffs and to F.; and about the same time similar charges were made, in such books, against other owners of the vessel, for premiums paid on such other policies upon the vessel, .and accounts were rendered to the plaintiffs and such other owners, from time to time, embracing those items.

      Held, 1. That the Atlantic Mutual Insurance Company, by their policy,, agreed to become liable to such persons as S. & T. intended and were authorized to insure; and that they trusted to, and agreed thereby, to rely on the-usual manifestations of such intent by the acts, declarations and relations, of the latter.
    2. That entries in the books of S. & T, according to the usual mode of dealing by insurance brokers with their principals, to be transferred, subsequently, into tjie accounts to be rendered to the latter, became substantially a part of the res gestee, and were an admission against their interest, that they themselves, were not the parties insured.
    8. That the giving of authority by other owners, and the making ef other policies of insurance, co.uld not affect the admissibility of such entries as evidence, although they might tend to strengthen or diminish their effect as such.

      4. That other owners, by employing the same insurance brokers as the plaintiffs did, agreed, substantially, with the underwriters, that such agents should determine to whose benefit policies of insurance made by them on such vessel: should enure; and assented in the same manner to be bound by the usual modes of manifesting the intent of insurance agents, as. to the parties to be-covered by particular policies.
    G. That the obtaining of other policies, about the same-tibie; by S..& T. equal to the valuation of the interests under their care, thoir charging their premiums to different owners, and rendering accounts containing such charges, made the entire body of entries equivalent to a distribution of all the policies so obtained among the parties insured, within a reasonable time after they were made, by common agents, authorized to insure with whomsoever they pleased.
    6. That as regarded the owners, other than the plaiptiffs and F., such entries were made in time to become part of the res gestae, if they were made before any thing occurred to actuate the agents by any other motive than that of discharging their equal duty to all.
    7. That such charges against the parties intended to be insured, being made either in the books of the agents or in the shape of the memoranda to be entered therein simultaneously with the giving of their notes for the premiums, such entry of them was sufficiently near in time to the transaction of making the policy, to form a part of the res gesta, to determine whose interest the policies were intended to cover.
    (Before Robertson, Barbour and Garvin, JJ.)
    Heard December 7, 1863;
    decided February 13, 1864.
    The subject of controversy in this action is the ownership of two equal separate thirds of a policy of insurance for §9,375, issued by the defendants, The Atlantic Mutual Insurance Company, to the firm of Stanton & Thompson, of which the defendant Stanton is the survivor, on the 26th day of May, 1857, upon the ship Knickerbocker, for one year from the 27th of May, 1857. The company concedes its full liability upon the policy to the parties for whose benefit the insurance was effected. The plaintiffs claim, each, as to one distinct third of the policy j that the same was effected to cover their interest in the vessel, and has always belonged to them. The defendant Fowler, as administrator of Peabody, claims the same two-thirds, under an assignment to him by Stanton & Thomson, with the assent of this company, but without the knowledge of the plaintiffs, in the month of April, 1858. And the company insists that neither of these claims is well founded, but sets up as a defense a supposed interest in the policy in other parties who have never asserted or pretended to any title themselves, and are not parties to this action.
    The facts established by the evidence and found by the court, on which the plaintiffs rely, are as follows : The ship Knickerbocker was built in the spring of 1854, and was lost by the perils insured against Hay 23d, 1858 ; and during the whole period of her existence the plaintiffs owned each a distinct and separate one sixteenth part of the ship. The firm of Stanton & Thomson- built the ship, as partners and agents, and managed her, as ship’s husbands, till her loss. Their original interest was four sixteenths, which, by a subsequent purchase, was increased to six sixteenths before the loss. The defendant John W. Fowler, was original owner of one sixteenth, and his intestate, Simon- Y. Peabody, of two sixteenths. Peabody was master of the Knickerbocker, until his death, on the 20th of January, 1858, and Fowler retained his own one sixteenth in his own right, and Peabody’s two sixteenths in his representative capacity, until the loss of the ship. The remaining portions of said vessel were owned as follows, when she was built, and from thence until, and at the time of her loss, viz : Bouse Babcock owned two sixteenths, Joshua Aitken and Joshua Aitken, Jr., two sixteenths ; Thomas Collyer, one sixteenth. When the ship was launched, each of the plaintiffs separately, and not jointly with the other, or with any other owner, instructed Stanton & Thomson to insure and keep insured his particular interest, at -a valuation of #50,000 for the whole vessel, and simular instructions were received by them from Fowler, Peabody, Collyer and Babcock. No further directions were given by any owner, respecting the insurance, the manner of effecting it, nor in what company or companies, nor as to the terms upon which it was to be effected. On the 26th day of Hay, 1854, Stanton & Thomson effected, to cover the separate interests of Forgay, Conner, and Fowler, an insurance with the Atlantic, taking from that company a policy dated the 27th of May, 1854, upon the ship Knickerbocker, valued at #50,000, “for the benefit of whom it may concern,” loss (if any) payable to Stanton & Thomson, for one year, at a premium of eight per cent, which together with #1.25, as the cost of the policy, was paid by Stanton & Thomson’s note for #751.25. Immediately upon effecting such policy, Stanton & Thomson charged on-their books of account to Conner, to Eorgay, and to Fowler, each one third of the note so given, in the terms following :
    “ John Conner, for one sixteenth of above note, in Atlantic, $3,125, at 8 per cent, and policy 42c., .... $250 42
    “ William Forgay, for one sixteenth of above note, in Atlantic, $3,125, at 8 per cent, and policy 42c., 250 42

      “ John W. Fowler, for one sixteenth of above note, in Atlantic, $3,125, at 8 per cent, and policy 42c.,..........-..... 250 41”
    and at the same time charged to each a separate commission for effecting insurance on one sixteenth of the ship Knickerbocker. During the term of this policy, the ship having made an excepted trip to the Grulf of Mexico, Stanton & Thomson paid therefor an additional premium of $93.75, and charged to Conner, Forgay, and fowler, each one-third of that amount, “ For cash paid The Atlantic Mutual Insurance Company, additional premium on one sixteenth ship Knickerbocker,' for using Grulf Ports.” In May,-1855, on the expiration of the policy, the said insurances were renewed for another year, for the same amount, by a new policy, in all respects like the original; and that being done, the premium, cost of policy, and commissions were charged in the same way as before by Stanton & Thomson, one third each on separate one sixteenths, to Conner, Forgay, and Fowler, and having during the renewed term paid to the company an additional premium of one per cent, for the vessel’s taking more than her registered tonnage, this also was charged in like manner to the said separate interests. Again, in May, 1856, on the expiration of the said policy, the same insurances were a second time renewed for another year, by a third policy like the two first, and the same charges were repeated in Stanton & Thomson’s books. During this year another additional premium was paid, and a general and particular average loss occurred, which was credited on the policy and paid. A memorandum of the adjustment being endorsed on the policy by the company’s secretary, as a credit to the policy of the amount adjusted on three sixteenths of the ship Knickerbocker. And. this disbursement and receipt were, as in every previous instance, respectively charged and • credited in equal thirds to the same parties. Finally, in May, 1857, on the expiration of the policy last mentioned, Stanton & Thomson renewed the same insurances by taking out a new policy, which is the policy in suit, under which the vessel was lost; and on this occasion, as in the three previous years, the premium, cost of policy, and commissions were charged in the same manner in equal thirds.to the same parties. During this year and before the final loss of the vessel, another loss occurred under the policy and an order for its payment was indorsed on this policy by the company, which was expressed to be on three sixteenths of the ship. This also was credited in Stanton & Thomson’s accounts to the same parties in the same proportion. The plaintiff Conner, in answer to inquiries on the subject, was repeatedly informed by Stanton & Thompson, from time to time, between the effecting of the first and last insurance, that his interest was insured by them in the Atlantic. The plaintiff'Forgay also was frequently informed by Stanton & Thomson that his interest was insured, and upon his applying for his policy on the occasion of the loss of the ship was told by Stanton that his interest had been covered by the Atlantic policy. On the 13th day of March, 1856, Stanton & Thomson rendered to the plaintiff Conner an account current of transact tions between them from May 27th, 1855, to March 12, 1856, charging him as he had been charged in their books, with the one third of their notes paid the Atlantic within that period for.premium and additional premium and cost of policy on one sixteenth the ship Knickerbocker, and commissions as before stated. The account showed a balance against Conner, and soon after it was rendered the balance was paid and the account settled. In like manner similar accounts current were rendered by Stanton & Thompson to the defendant John W. Fowler, on the 8th of December, 1857, and again on the 2d day of October, 1858, of transactions between them from March 14th, 1856, to those dates respectively, in which Fowler is uniformly charged with one third of the premiums and expenses paid by Stanton & Thomson for the several insurances in 1856 and 1857 of his one sixteenth share in the vessel in The Atlantic Mutual Insurance Company, and is likewise credited with one third of the moneys received from the same company in the average losses and adjustments before mentioned. Stanton & Thomson likewise rendered and delivered to the plaintiff Forgay an account current of transactions between them from July 17th, 1854, to December 5th, 1857, in which he is credited and charged in like manner as Connor and Fowler in the accounts rendered to them with one equal third of the respective payments and receipts appearing by their books upon the said policy in The Atlantic Company as upon his one sixteenth of the ship Knickerbocker. On the 30th of May, 1854, Stanton & Thomson insured four other sixteenths of the ship at the valuation of §50,000 in the Sun Mutual Insurance Company, which insurance was renewed by them in the year 1855, in the same company. In 1856, this policy was allowed to expire, and in lieu of it two policies were effected hy them, one in the Great Western, for four twentieths of the vessel, ($10,000,) in the Commercial for one twentieth, ($2,600,) and again on the 30th of May, 1857, these two policies were renewed for one year, and were' in force when the loss occurred. The premiums, expenses and charges upon this line of insurance were uniformly charged by Stanton & Thomson in their accounts, the one half to' Simon Y. Peabody on his one eighth interest in the ship, and the other half to Rouse Babcock on his one eighth interest in the ship, as follows : During the existence of the policy in the Sun Company, one half of that policy to each, and after the policies in the Great Western and the Commercial were substituted for that, Peabody was charged with so much of the Great Western premium, &c. as was the just proportion of the whole amount insured there for his one eighth of the ship, valued at $6,250, and' commissions and charges accordingly, and the rest of that policy and the whole of the Commercial policy are charged to Babcock, and so in like proportions were the sums received from the Great Western and Commercial companies on the policies credited to them. Be-. fore his death, Stanton & Thompson rendered to Peabody an account current showing the full details of these charges and credits up to the end'of the year 1857. On the 27th of May, 1854, Stanton & Thomson insured in the Mercantile Mutual four other sixteenths. of the vessel, on the same valuation, which insurance was from year to year renewed by them, partly in the same company and partly in the Globe Mutual, until the time of the loss, and this line of policies was uniformly charged in their accounts to their own one quarter of the ship, and so all the charges and expenses incident to it were charged and the receipts upon it credited. On the sixth of June, 1854, a separate policy for $3,125, being on the one sixteenth, at a valuation of 50,000, was effected by Stanton & Thomson, in the Commercial Mutual, which was annually renewed in the same company, and finally by a policy dated 6 th June, 1857, which was in force at the time of the loss. From first to last, this policy and all the payments' received upon it, were uniformly charged and credited in the accounts of Stanton & Thomson to. Thomas Collyer. The last policy was before the commencement of this action, accepted by Collyer as his own, and no claim appears to have been made by him upon the policy in suit. The policy of the Commercial, dated May 30th, 1857, is held by Rouse Babcock, who accepted it as his own in the distribution made by Stanton & Thomson, after the loss. Of the policies charged in the accounts against the interest of Stanton & Thomson in the vessel, that in the Mercantile has been paid to Stanton & Thomson and cancelled by them. The facts on which the defendant, Fowler, as administrator of Peabody, based his claim to the disputed two thirds of the policy in suit, are thus stated in the twenty-fourth finding of the court: “ On April 9 th, 1858, John W. Fowler, for himself, and as administrator of Simon Y. Peabody, requested Stanton & Thomson to deliver to him the policy covering his and said Peabody’s interest in the Knickerbocker ; Stanton & Thomson thereupon indorsed the policy of the Atlantic Mutual Insurance Company, dated May 27th, 1857, and being the one now in suit, by writing their firm name upon it, and delivered it to said Fowler, who thereupon procured the secretary and vice-president of the said company further to indorse on said policy, and to sign with their official signatures a statement in these words, ‘ April 9, ’58. The interest under this policy is hereby transferred to John W. Fowler, Milford, Connecticut, administrator of the estate of S. Y. Peabody, deceased, in part, and for himself in part.’ Fowler, upon the requirment of the said secretary and vice-president, and as a condition of their signing said statement, endorsed at the same time the promissory note of Stanton & Thomson, which had been given to the company for the premium of said policy. And when said note came due, Fowler paid to the company upon account of it, the sum of $204.79 ; and the residue of the note, with the expenses of protest, ($735.06,) was paid by offseting against it the claim upon the company for general average on the three sixteenths of the Knickerbocker, insured by them on her voyage in 1857, from Liverpool to New York, which claim was previously credited by Stanton & Thomson to Conner, Forgay, and Fowler respectively, (one third thereof $245.02 to each.) ”
    The assignment of the policy to Fowler, was made by Stanton & Thomson without the consent or knowledge of either of the plaintiffs.
    The plaintiffs claim, in their complaint, that the policy issued by the Atlantic Company belongs to them, and to John W. Fowler, individually, and that none of the other owners of the ship have any interest therein. The defendant Fowler claims as administrator of Peabody, and in his own right, to own the policy by virtue of the indorsement of April 9th. The Atlantic Mutual Insurance Company claim that the policy belonged to all the persons named aforesaid, for whom Stanton and Thomson ordered it. They set out the names of the other owners, and.claim that such owners should be made parties to the suit. There is no evidence in the case showing that the plaintiffs, or any owner, ordered the policy in suit, but it appears that Stanton & Thomson, having a certain amount of insurance to effect, viz. $37,500, went to the most

      prominent office, and gave them all they would take, then to the next most prominent, and gave them all they would take, and so on until the whole was covered. The plaintiffs relied upon entries in the books of Stanton & Thomson, charging the premiums and cost of policies to particular parties, to sustain their action. The defendants deny that these entries have anything to do with deciding the question of the ownership of the ■ policies, for two reasons : 1st. They were not made until after the policies were issued. 2d. -The policies were the controlling documents, and Stanton & Thomson could not vary their impo'rt, or change the right of any of the parties thereunder, without the consent of all the parties thereto. They therefore insisted that the entries were improperly admitted as evidence.
    Upon the above facts, the referee found as conclusions of law: ' That the plaintiffs, Forgay and Connor, and the defendant Fowler, in his individual capacity, are severally owners, each of one third interest, in the policy issued by the defendants, the Atlantic Mutual Insurance Company, dated May 30, 1857, upon which this action is brought, and are entitled each to the sum of $3,125, being the one equal third part of the money insured by said policy upon said ship Knickerbocker, and to interest thereon as claimed in the complaint; that the defendant Fowler, as administrator of the goods, chattels and credits of the said Simon Y. Peabody, deceased, has no right, title or interest in or to said policy, or the money payable thereon, or in or to any part thereof; that out of the said sum of $3,125, and interest, to which the plaintiff Conner is entitled, as above stated, there should be paid to the defendant Fowler $68.26, with interest, being one third of the amount paid by Fowler on the premium note given for said policy, and that the residue of said sum of $3,125, with the interest thereon, should be paid to the said Conner ; that out of the said sum of $3,125 to which the plaintiff Forgay is entitled, as above stated, there should also be paid to said Fowler a like sum of $68.26, with interest, being another one third of the amount paid by Fowler on the premium note given fdr said policy; and that the residue of said last mentioned sum of $3,125,.and interest, should he paid to Forgay ; that upon the payment of the said sum of $3,125, and interest, by the Atlantic Mutual Insurance Company to the said Forgay, Conner and Fowler, respectively, the said Fowler should deliver up the said policy upon which this action is brought to the Atlantic Mutual Insurance Company, to be cancelled ; and that the said defendant should pay to the plaintiff the costs of this action.
    Judgment being entered accordingly, the defendants, the Atlantic Mutual Insurance Company, and John W. Fowler, appealed.

      T. Scudder, for the Atlantic Mutual Ins. Co. appellants.

      J. W. Parsons, for J. W. Fowler, administrator, &c. appellant.

      J. E. Choate, for the repondents.
   By the Court,

Robertson, J.

All the original owners of • the ship in question, (the Knickerbocker,) except two, (the Aitkens,) originally authorized and instructed the defendant Stanton and his former partner, James Thomson, Jr. then constituting the firm of Stanton & Thomson, to keep their separate interests in her insured, valuing her at a certain sum, ($50,000.) Each owner gave .this direction separately, without any reference to the interests of others. This fully appears in the testimony and findings by the court. By the death of. Thomson, in March, 1857, and the admission of another, (John) Thomson in his place, a change was made in the com- ' position of the firm, but its business and name continued the same. The policy in suit, and others, were taken out in the same name. In that name accounts were rendered, policies transferred, and the business of the vessel conducted by the new firm as ship’s husbands. There was, therefore, enough evidence of the ratification of their acts, as agents of the owners, to warrant the conclusion of the continuance of the authority to such new firm to continue to make insurance on the several interests of the owners. Although it may not he very essential to the rights of parties to determine who was the actual agent, Stanton or the new firm, it relieves the case from embarrassment to consider the insurance agents as the same from the birth to the loss of the vessel.

In May, 1857, Stanton & Thomson, in pursuance of such authority and instructions, obtained from the defendants, the Atlantic Mutual Insurance Company, the policy in question. By it they are insured by their firm name, “ on account of whom it may concern.” Loss if any payable to them. It contains- the usual clause, limiting the liability of the underwriters in case of a prior insurance “ on the premises,” to so much as such prior insurance should fail to cover. The amount insured is exactly three sixteenths of the valuation of the vessel in the instructions to insure, ($9375,) which was the share of the vessel then owned by the plaintiffs and Fowler. No disclosure was made to the company, at the time of making such insurance, of either the parties or the interest to be insured. Only two other policies, each for one tenth of the valuation of the vessel, had then been taken out by Stanton & Thomson, pursuant to the instructions to them. Thus nothing on the face of the contract, or passing between the parties to it at the time of making it, disclosed for whose account they were in fact made. Unless there was some extrinsic evidence of the intention of Stanton & Thomson in making such insurance as to the persons and interests to be covered thereby, it would have covered only the interest of. Stanton himself as an owner. Or if the only evidence were proof of the instructions of all the owners to insure their interests, it might have enured to their joint benefit alone.

Whatever interest, or whoever.was protected by such policy of insurance, it is clear that the rights of any party insured by it were vested when it was made ; they 'could not be ambulatory until fixed by Stanton & Thomson, nor transferred by them as they thought proper, unless possibly they might have the right of extinguishing any claim hy rescinding the contract, While it .remained a subsisting contract, nobody could claim any benefit under it, except they were designed to be protected by it at the time it took effect as a binding contract. Nothing, therefore, done or said by such agent, after such rights became so fixed, was admissible to prove a subsequent choice by such agents, of the parties to be covered by it or the extent to which they were to be benefited,- or a transfer by them of such right from one to another 5 including, of course, any°distribútion among the owners in severalty, hy way of separating their interests of policies, if originally made either by their intention or any operation of law, the property of all jointly. If any acts or declarations of Stanton & Thomson, after the making of the policy in question, were admissible in evidence at all, they were only so to establish the original intent in making the policy,- and not to prove subsequent changes of interest. They would, therefore,- be subject to the same restriction as to the proximity of the time of their occurrence, and the mode of making them, as all external conduct when admitted to prove mental intent. They would never, however, reach as far back as a continuous course of dealing by such agents with the interests of the plaintiffs under their instructions to insure would. Such a course might be followed as far back as it was unbroken, to settle the question of intent in the particular transaction.

If the question in this case were whether tlfe insurances were made for the owners jointly,- or severally,- alone, without reference to the persons for whom they were made, the fair presumption of fact, if not of law, would be, that they were not made for them jointly. It is not necessary, however, to discuss at length how far the insurance brokers would have violated their duty if they had made a joint insurance. The question would -still remain in any event, - if the insurances were, in fact, several, who was covered by the policy in question.

It is so well settled that a policy made “ on account of whom it may concern,” covers the interest of all whom it was intended to protect, (Crosby v. N. Y. Mut. Ins. Co., 5 Bosw. 369,) as to be so stated in elementary works. (2 Pars. Marit. Law, 29-33, and cases cited. 2 Duer on Ins. §§ 8, 9, 21,24, 30.) Two statutes were passed by the British Parliament, (25 Geo. III, c. 44; 28 Geo. III, c. 56,) requiring the names of agents to be inserted in polices, without, however, stating their agency, (Bell v. Gilson, 1 B. & P. 346, n.) in order to remedy the evils of an earlier custom, of delivering policies in blank. (3 Steph. N. P. 2094, 2095.) Such a form as the present, answers the ends of such statutes. An authority to insure, tends to confer on those giving it the benefit of an insurance merely, by the evidence it affords of intent. It is only when the policy extends to those concerned at the' time of the loss, that subsequent assignees are covered. (Rogers v. Traders’ Insurance Co., 6 Paige, 583.) In this case, the protection of the policy is confined to those interested when it was made, and its applicability turns upon a question of intention in fact. If, then, it was intended to protect, not all, but only one or more, the question to be solved is, who those were.

The individual interest of the defendant Fowler is admitted by the plaintiffs to be covered by the policy ; the only question is as to the remaining two thirds, whether it belonged to the estate represented by Fowler (Peabody’s,) or to the plaintiffs. It is not necessary now to consider any new rights acquired by such defendant, as administrator against his co-defendants, the company, by their indorsement on the policy before the loss, which declares the interest under it to be transferred to such defendant, as .administrator. They could not bar the plaintiffs’ claim ; the pleadings are not framed to try any. issue upon them, and any infringement of them is not .the same cause of action as that set out in the complaint, since that grows wholly out of the original policy. The right of such defendant, as administrator, if any, must rest, not on the transfer to him in April, 1858, but to the right of his intestate under it, when made.

There was no evidence of any intention by Stanton & Thomson to protect Peabody's interest, exclusively, or at all; on the contrary, an entry was made in their books, charging him with premiums of insurance paid by them on other policies, by other companies, in like form ; which was carried into an account rendered at some time after the death of Peabody, and before April, 1858, to the defendant Fowler, as his administrator. ’ The only evidence of any intention is the transfer of the policy in question, nearly a year after it was made, to such administrator. That was too long after the transaction, to show the intent with which it was. .made. The only debatable question of fact, in regard to intention, is, if the policy in question was not made for all the owners jointly, was it intended to be made by Stanton & Thomson for the plaintiffs, and Fowler in his own right alone.

Stanton testified, it is true, that the policy in question was effected on account of three quarters of the ownership of the vessel represented by himthat he took it out for such three quarters; and effected other policies on the same account in the same year. In a previous part of his testimony, he hád, however, stated that he took out the original policies on such three fourths on the same day, and gave to each insurance office all the amount of risk they would take; hut did not state to them for whom he was acting, nor any interest as making up the line of risk § while the companies only stated what account they would take. When the policies ran out, he renewed them, with the same companies, if they would take the same amount; but he never said any thing, to any company, “ about the interest in the three quarters " he wished to cover. As this testimony was given in 1860, respecting transactions from three to five years previous, such witness might have forgotten some of the facts ; hut were such statements hostile to the plaintiffs' case, recourse may be had to other statements of Stanton, as well as his acts, to show that the completeness of his testimony was not perfectly reliable.

Besides, the fact that the amount of valuation in the policy in suit corresponded precisely with the share of the plaintiffs and the defendant Fowler, of interest to he insured, the plain-' tiffs adduced as evidence of the policy in question being obtained to cover such interest, a series of policies alike in form and contents, except as to the duration of the risk, beginning •with the first one obtained after the firm of Stanton & Thomson were directed to insure, the time of the commencement of the risk in each policy being the same as that of the termination of the preceding one. The first of such series was taken out in May, 1854. On the same day, Stanton & Thomson took out a similar one from the Mercantile Mutual Insurance Company, for a sum equal to four sixteenths of the valuation of the vessel in question ($12,500.) Three days afterwards, they took out a like one for the same sum from the Sun Mutual Insurance Co. ($3125,) and in June following, they took out a like one, for the same sum, from the Commercial Insurance Company ; making in all twelve sixteenths, or three quarters of the valuation of the vessel. It can hardly be doubted, where two policies on the same risk, for the same amount, by the same underwriters, continue such risk by its commencement in the second, at the period when the first left it, and thé first is proved to have been made for the benefit of particular insured parties, that the second was made for the same parties, unless some other evidence disproves it, and reconciles such coincidence with a different state of facts.

The only difficulty in the proof in the cause that the plaintiffs were the parties intended to be protected by the policy in question, when it was made, grows out of the nature and admissibility of the evidence offered for the purpose. Most of it consists of entries made in the mercantile boobs of Stanton & Thomson, by their book-keeper, who subsequently became a partner in the firm (John Thomson.) Three of them were charges against the plaintiffs, separately, and the defendant Fowler, of a third of the premium note given by Stanton & Thomson to the defendants, The Atlantic Insurance Company, for the first of the series of policies issued by them for three sixteenths of the valuation of the whole vessel. They were, however, not made until July, 1854, two months after the date of the policy. That delay, however, is accounted for by the book-keeper in several ways. In the first place, the policies were sent to the office of Stanton & Thomson before the premium notes were given, and the delay in signing the notes was owing to a press of business upon Mr. Stanton. Until the premium notes were given, the book-keeper made memoranda of the char-ges on loose slips of paper, from which he entered, them in the books, after the notes were given, and then destroyed such loose notes. He did not always make the entries immediately after the notes were signed; but allowed the memoranda sometimes to accumulate' for two or three weeks, before, from press of business, he was able to enter, the charges on them, and sometimes he waited until all the notes were signed, in order to make the-entries as near together as possible. As Stanton testified, the entries had to be made, because the notes were given, and had to be charged to some one ; but he left it to the discretion of his bookkeeper to make such entries as he saw fit, as to insurance. He used to take a general glance at his books, but never examined them minutely, and might hare seen the entries just spoken of at any time within four years. He “never knew, until after the loss of the ship, to what specific interests the various policies were charged,” but always had an idea of their general form.

At or about the time of charging the plaintiffs and the defendant Fowler with one third of the premium note given to the defendants, The Atlantic Company, in July, 1854, similar charges were made, under the same circumstances, ine the books of Stanton & Thomson, against other owners of such vessel, for premiums of insurance paid to other underwriters, on other policies, for other sums, on such vessel. Most of the charges so made, were contained in accounts • rendered by Stanton & Thomson to such various owners, and received without objection. Their account with the plaintiff Forgay, not rendered until 1857, or 1858, contained charges for one third of premium notes given to the defendants, The Atlantic Insurance Qompg-ny, for policies in every year for the same amount. They rendered no account to the plaintiff Conner, until March, 1856, when they rendered an account, embracing items only as far back as May, 1855, but -including in it a charge for one third of a premium note given to such defendants for a policy during that time. A separate integral commission, and not part of an aggregate commission, for effecting insurance was charged against each owner in his account.

The objection made to the introduction of such entries on the trial was, that they were mere declarations of the members of the firm of Stanton & Thomson, made after the policies were completed, and the rights of the parties fixed, when they had lost all power to interfere with such vested rights, or transfer them from one to another. This objection, I think, is founded upon a misconception of the character of such entries ; they are not declarations amounting to mere admissions ; but are outward manifestations of the intent of the agent, designating the owners and interest intended to be insured. It is very clear that it was part of the duty of the agents, as insurance brokers, to designate to their principals, in some way, the persons and interests intended to be insured. They might have done it by announcing it to the underwriters when the policy was made, or to the owners intended to be insured, forthwith ; yet the one wonld have been but a mere oral statement, and" the other a mere admission. By charging the amount to certain parties, they admitted, at least as far as they were concerned, that such parties were those intended to be insured ; and if Stanton & Thomson had received the amount of the polipy, such entries would have been conclusive against them,- unless .they could show some mistake. The plaintiffs had nothing to do with the fact that the same agents were employed by other owners to insure their interest. They could not insure for all of 'them jointly on such authority, or charge for payments or liabilities for them jointly, or even for a premium of insurance paid on a joint policy. (McCready v. Woodhull, 34 Barb. 80.) So long as the policies were taken in the form in which they were, there was no other mode pf earmarking them, except either by a declaration of trust, which would have been, open to a similar objection, or the more simple mode of charging the premiums to the parties intended to be covered. The question is not whether such entries were good evidence against the other owners to prove that they were not included in the policy in question, but whether they were evidence against the underwriters to prove that the plaintiffs and Eowler alone were. The company, by their policy, agreed to become liable to such persons as Stanton & Thomson intended, and were authorized to insure, and they trusted to, and agreed thereby to rely on usual manifestations of such intent by the acts, declarations and relations of the latter, which would naturally alone constitute its evidence. Entries in their books according to the usual mode of dealing of insurance brokers with their principals, to be transferred into their accounts rendered, was one of the most natural. and easily anticipated of such acts or declarations. They became substantially, therefore, part of the res gestee, unless made at a time, or under circumstances indicative of a motive not necessarily connected with the duty of the agents to their principals or the company ; because to a certain extent they were bound to the latter not to do or say any thing operating by way of evidence to produce a change of the parties insured, without the consent of the company. .Without the proof of authority from other owners to Stanton & Thomson, to insure their interest, and of other insurances made by them on the same vessel, these entries would clearly be proper evidence to charge Stanton & Thomson, and recover from them the amount of the policy, if they had received it; and it was an admission that they were not the parties insured. If all parties had been dead, they would have been admissible as entries against their interest. (Arms v. Middleton, 23 Barb. 571.) Authority given by other owners, and other policies of insurance made, could not affect the admissibility of such entries as evidence, although they might strengthen or diminish their effect as such. Other owners, by employing the same insurance brokers as the plaintiffs, agreed equally with the underwriters, that such agents should determine to whose benefit the polir cies made by them should enure, and agreed in the same manner to be bound by the usual modes of manifesting the intent of the agents as to the parties to be covered by particular policies. Had it been any other species of contract, in which its subject was deficient in an earmark, such as stock bought, could there have been any doubt, when several orders were given simultaneously to a stock broker to buy parcels of the same stock for different principals, that charges in his books against particular principals, for the price paid by him, made simultaneously with the purchase, would be good evidence in favor of the parties entitled to each parcel P Without proof of some intention as to the parties to be insured, the company would not be liable at all; and if proof of authority to insure is evidence of such intention, the selection by the agents, made cotemporaneously with the insurance, is good evidence as between the principals to be insured. Had the old forms of pleading been observed, the action must have been brought at law in the names of Stanton & Thomson, (Jefferson Insurance Company v. Cotheal, 7 Wend. 73 ;) and proof of authority from any one having an interest equal to that insured, would have enabled them to recover. In the distribution by Stanton & Thomson of the proceeds of such recovery, all parties would be bound by the declarations of their common agent, made at the time. The Atlantic Insurance Company, at least, were not prejudiced by the introduction of such entries, and against them they were admissible to show that the agents, by the policy, were insuring an interest they were authorized to insure. I am, therefore, strongly of opinion that the character of the entries, and the persons by whose direction they were made, did not render them inadmissible, if the time and mode of making them did not.

It is said, however, that such entries were made long after the transactions to which they relate, and not cotemporaneously, so as to be part of the res gestee. Perhaps the transaction, so far as it regarded the company, did not embrace quite as much of the conduct of Stanton & Thomson or other parties, as when it included the relation between the plaintiffs- and Stanton & Thomson, or the latter and their other employers. So far as the company were concerned, it was enough that the agents had principals interested in the vessel, whom they were authorized to insure; hut as regarded the plaintiffs and their other employers, the agents were hound to elect which should he covered by the policy, and do some act to manifest such election ; and that was done by charges against the separate parties, and rendering accounts containing them. The making off other policies about the same time, equal to the valuation of the interests under the case of Stanton & Thomson, charging their premiums to different owners, and rendering accounts containing such charges, make the entire body of entries amount to a distribution of the policies among the parties insured by common agents, authorized to insure with whomsoever they pleased, within a reasonable time. To prevent any mistake until the whole were insured, the agents were entitled to insure each interest severally as they pleased, and discriminate'between the parties ; and although it might not have been part of the res gesten, so far as the making of the contract of insurance was concerned, it was, so far as securing it for the benefit of a particular principal was concerned; which both the company and their employers permitted to be done by allowing the contract to be made in an indefinite form. As regarded the other owners, such entries were made in proper time, so as to become part of the res gesta, if made before the agents could be supposed to have had any other motive than discharging their duty to all.

But even if such entries, in order to be admissible against the insurance company, must be so near in time to the transaction, of making the policy binding, so far as they were concerned, as to. form part of it, the evidence establishes that they were so. The policies of insurance were indeed placed in the hands of the insurance brokers, before their notes were given for the premium, but it was not binding until such notes were delivered. Charges were made against the parties intended to be insured, as soon as the notes were given, either in the books of the agents, or in the shape of memoranda to be copietherein. The cause of delay in giving the notes, was a press of business and the cause of delay in making the entries was a press pf business on the part of the book-keeper of the agent, or his desire to make all the entries simultaneously. Stanton’s testimony, shows that each note was to be charged to separate owners, and that he armed his book-keeper with the power of selecting the parties to be insured by each policy; but the whole evidence establishes that each charge against owners insured was virtually simultaneous with the giving of the premium notes. If such entries were at all admissible, to prove for whom the insurance was made, they certainly were near enough in time to the making of the contract, to form part of the res gestee. The lapse of a brief interval of time, so short that it may be fairly inferred that the declaration or act was part of the transaction, or was intended to modify it, does not exclude an occurrence part of the res gestee, particularly where intention is involved. (Selin v. Snyder, 11 Serg. & Rawl. 319, 323. Tompkins v. Saltmarsh., 14 id. 275. Boyden v. Moore, 11 Pick. 362. Handy & Tull v. Johnson, 5 Md. Rep. 450.) Declarations of the reason for trusting a party, made four months afterwards, have been held admissible. (Fellows v. Williamson, 1 Mood, & Mal. 306.) Indeed there.seems to be no good reason why the language of L. Denman, Ch. J. in Rouch v. G. W. Railway Co. (1 Q. B. Rep. 51, 61,) in regard to acts of bankruptcy, where intention is involved, should not be applied to all cases of intention. He there says : “ The nature and strength of the connection (of the admission,) with the act, are the material things to he looked at, and although concurrence of time cannot but always be material evidence to show the connection, yet it is by no means essential.” The same principle has been applied to book entries, made in order to charge another. (Curren v. Crawford, 4 Serg. & Rawl. 5.)

These remarks are applicable to the policies issued in 1854. The policies of the three following years, (1855, 1856, and 1857,) connected with the accounts rendered by Stanton & Thomson, and delivering of some of such policies to other owners by whom they were accepted, and rendering of accounts to the plaintiffs and Fowler, embracing their shares of the premium notes given for the insurances by the Atlantic Company, strengthen the inference as to the design of the insurance agents, and bear out the conclusions of the learned judge before whom the case was tried.

Singularly enough, although numerous facts are contained in the findings of the court at special term, which are evidence merely of the main important fact, to wit, for whom the policy in question was intended to be made ; that fact is not distinctly stated. But the learned judge has stated as a conclusion of law in his decision, that the plantiffs and Fowler were each owners of undivided third parts of the policy in question. His judgment, therefore, can only be sustained by assuming that the policy in question, when it was made, was intended by Stanton & Thomson to protect such an interest. And as the facts proved tend to establish such an intention on their part, it may be assumed that he found it to have existed at the time of making the policy. He could not be presumed to have found that the parties before named became such owners by virtue of any transfer by the agents for making insurance, since all the policies must have been made, either for the benefit of Stanton alone, to cover his interest, or of all the owners of the vessel in question who authorized them to insure, or of such as they charged severally with the amount of the premiums of insurance; and could not be diverted by such agents from them, without their consent. And the testimony is amply sufficient to exclude Stanton and any other owner, except the plaintiffs and Fowler, from being intentionally insured by the policy in question.

With these views as to the nature and origin of the plaintiffs’ rights, it will not be necessary to say much of the power of Stanton, the insurance company, or Fowler, to alter theiq without their consent, which they clearly could not do. J do not, therefore, see how any new rights of the defendant Fowler, - as. administrator, under the indorsement of the company, can come into issue or be litigated or determined in this action. They were no part of the case of the plaintiffs, were utterly immaterial, and formed no defense, unless such appropriation of the policy, destroyed the plaintiffs' original rights, which it could not. It does not appear that the plaintiffs asked for any judgment on that point, or urged it. It is entirely a question between the defendants. Even Fowler, in his answer, only claims the benefit of such policy as being appropriated to him by the act of his agent, with the consent of the underwriters. The defendant Fowler, as administrator, would have been entitled to have the judgment modified by striking out any part which had adjudged that on such indorsement no new contract arose in his favor; but there is no such adjudication in fact, and he is not precluded from an action against the company on such indorsement, if so advised.

All the exceptions to evidence, more or less involve the principles already laid down, and must therefore be overruled. The judgment must be affirmed, with costs.


source: Caselaw Access Project

author: Robertson, Ch. J.

license: Public Domain

text:
    George W. Platt and Nathan C. Platt, plaintiffs and appellants, vs. Henry Wells, President of the American Express Company, defendant and respondent.
    1. The duty of a carrier of goods is discharged hy delivering them either to the person to whom they are directed or to some one authorized hy him to receive them.
    2. The consignee, if not presumptively the owner of the goods, so far as the consignors are concerned, is at least to be treated as their agent.
    3. Consignors who, after being notified that the goods have been obtained from the carriers of them by a third person, by authority of the consignee„not only makes no objection to such delivery, but in an action against such third person upon a note given to them for the price of such goods, make oath that it was received for goods sold and delivered, will be deemed to have ratified the delivery to such third party.
    (Before Robertson, Ch. J., Garvin and McCunn, JJ.)
    Heard February 8, 1864;
    decided February 13, 1864.

      Appeal by the plaintiffs from a judgment entered against them upon the report of B. W. Bonney, Esq. referee. The plaintiffs sued the defendants to recover the value of a box of jewelry, owned by the plaintiffs and entrusted to the defendants, as carriers, and not delivered to the consignee. The complaint avers that on the 9th June, 1855, the plaintiffs delivered to the defendant a box marked “ Daniel C. Munro, Elbridge, New York,” which the defendant agreed to deliver to the said Daniel C. Munro. The contents of the box are stated to be of the value of $4000. That the defendant did not deliver the said box to Munro. That “ Munro has frequently demanded the box.” That freight on the same was paid by some person other than Mfinro, to whom the box was delivered. That the box had been parted with by the plaintiffs on a “ conditional sale ” of the merchandise to one L. P. Anderson. That the condition was, that the box should be delivered to Daniel C. Munro. That by reason of the failure to deliver the box and its contents to Munro, the plaintiffs have suffered the loss of the box and its contents. By the answer, the receipt of the box admitted by defendant; to be delivered as called for in the receipt, which was done. That by the terms of the receipt the company were not to be liable for any loss, unless the just and true value of the box and contents was stated, for an amount exceeding one hundred and fifty dollars. That the defendant falsely and fraudulently represented the value to be four thousand dollars, and no more. That the real value of the box and contents was the sum of eight thousand dollars. That the American Express Company did forward the box and its contents, and did deliver the same according to their undertaking. The issues in the action were referred for trial to the Hon. B. W. Bonney, as sole referee. On the trial before him, the following facts were proved : On the 30 th day of May, 1855, the goods contained in the box in question, and of the value of $8000, were sold by the plaintiffs to La Rue P. Anderson, and were charged to him in the plaintiffs’ books. The sale was made on the condition that Anderson should give to the plaintiffs therefor a note for the value of the goods, payable one year from date, to be signed by him, (Anderson,) and one Daniel 0. Munro, of Elbridge, in the county of Onondaga, and to be guaranteed by John Munro, of Elbridge aforesaid ; and it was also agreed-between the plaintiffs and Anderson that the merchandise selected by Anderson should be by the plaintiffs sent to Daniel G. Munro, to be by him delivered to Anderson, on, upon, or after the making and delivery to the plaintiffs of the note. The goods were delivered by the plaintiffs to the American Express Company on the 9 th day of June following, directed to Daniel C. Munroe, and a receipt taken in the following words :

      “ American Express Company,
    Foreign and Domestic Agents, Express Forwarders.
    New Yobk, June 9, 1855.
    Platt & Brother has delivered to us one box, value four thousand dollar's, marked as follows: Daniel C. Munro,
    Elbridge, New York, which we undertake to forward to Junction only, perils of navigation and transportation excepted. And it is hereby expressly agreed that the said American „ Express Company are not to be held liable for any loss or damage, except as forwarders only, nor for any loss or damage of any box, package or thing, for over $150, unless the just and true value thereof is herein stated ; nor for any loss or damage by fire ; nor upon any property or thing unless properly packed and secured for transportation; nor upon fragile fabrics, unless so marked upon the package containing the same; nor upon any fabrics consisting of or contained in glass. For the proprietors. (Signed,)
    Bailey.”
    On the 13tli June, 1855, a note for $8500 was sent by Anderson, in a letter signed La Due P. Anderson and Daniel O. Munro, for the goods in question. On the same day Anderson, at Auburn, wrote to the plaintiffs that he had received the goods, and had compared them with the invoices, and found certain errors which he wished corrected. The plaintiffs acknowledged the receipt of Anderson’s letter, and made deduction on their books of errors pointed out by Anderson, to the amount of $11.50. The invoices of the goods had been handed by the plaintiffs to Anderson, in Hew York, before the goods were forwarded, and at the time of the sale. Munro knew nothing of the intention of Anderson to purchase the goods ; he was ignorant of the arrangement or understanding between plaintiffs and Anderson on the subject; he had neither been • advised with, nor had he agreed that the goods should be marked to him ; he had received no letter or advice from the plaintiffs that the goods had been marked or sent to him. He had not signed the note. As to him, the note, and the letter of June 13th, in which it was enclosed, have been proved by the plaintiff’s to be forgeries. The letter from the plaintiffs to D. C. Munro, of June 9th, 1855, was never received by bim. The box arrived at Junction on the 11th day of June, 1855. On the day that the box arrived at the Junction, Anderson went to the house of Munro, and told him he had a box coming directed to him, Munro, and asked Munro to go to the depot with him, “ and get it—the box—as it was directed in his (Munfo’s) name.” Munro could not go, and told Anderson to go and get the box. Anderson said he would have difficulty, as the box was directed to Munro. Munro said he (Anderson) could get it without him as well as with him. “ That he could get the box.” That he (Munro) had nothing to do with it. Anderson went directly from Munro’s house alone, to the railroad depot. He had been at the depot a few days before, and said he was expecting a box marked D. C. Munro; Munro and Anderson had often been at the railroad together; they had, in fact, been at one time partners in business, and had shipped and received property together ; and Anderson had been in the habit of getting Munro’s letters from the post office, with Munro’s consent. Anderson brought the box to Munro’s house on the evening of the 11th June. He told Munro “he had the box.” It was in his wagon, at Munro’s door. Anderson was asked to bring it in the house ; he declined ; but he asked Munro to come to Auburn, where he was about to take the box, and where it was to be opened, and where he (Munro) could get a part of the contents ; to which Munro assented, and he went the next day, and did get a portion of the contents. On the 18th June, 1856, after the note was due, Munro received information from the plaintiffs, by letter, that they held the note in question. This was the first information Munro had of the forgery. Munro, on the 21st June,-1856, wrote them it was a forgery. Munro has never made any claim or demand on the Express Company for the box in question, other than the demand made by Anderson, on the 11th June, when he received it. Munro and Anderson had business relations together after the delivery of the box, and during the years 1855 and 1856. The plaintiffs and Anderson also had such relations, and kept up a correspondence; and in February, 1856, the plaintiffs sold Anderson a further bill of goods. On the 25th day of June, 1856, and after they knew of the forgery and the receipt of the box by Anderson, the plaintiffs made affidavit and brought action in United States District Court in Wisconsin, against Anderson, on the note in question ; setting Up in the affidavit that the note was given “for goods sold and deliveredThey attached certain property of Anderson in that suit. The plaintiffs, in July, 1856, actually received of Anderson about $900 of the goods in question. On the 3d July, 1856, for the first time, Platt & Brother made a complaint against the Express Company, and then the complaint was, “that the box had not been delivered to Munro” bio formal claim or demand was made until May, 1861, when this action was brought.
    The referee reported from the facts found and proved, as a conclusion of law, “ That the delivery, by the American Express Company, of the said box, in the manner and under the circumstances above found and reported, was a sufficient performance by said company of their contract or obligation to deliver the same, and exonerate the company from any liability to the plaintiffs therefor.”
    Judgment dismissing the complaint, with costs, having been entered, the plaintiffs appealed.

      Wm. R. Martin, for the appellant.
    The conclusion of the referee was single and general, that the delivery was sufficient. The case does not present any conflict of evidence. (Scranton v. Baxter, 4 Sandf. 5.) The referee’s conclusions of law are not sustained by the facts proved, and are erroneous.
    I. It is well settled as the rule of law, that it is the duty of a carrier to seek the consignee and make a tender of the property, or give notice to him or his authorized agent. From this duty he can only be discharged by special contract or affirmative proof of opposite usage. (Schroeder v. Hudson R. R. 5 Duer, 62.) In Haslam v. Adams Ex. Co. (6 Bosw. 243,) a deposit within the front door of the consignee’s place of business, with notice to a boy in the consignee’s office úp stairs, was held not to be a good delivery. The rule laid down in these recent cases is well sustained on the authority of Gibson v. Culver, (17 Wend. 305, and cases cited.) A carrier remains liable till the actual delivery of the goods to the consignee, or, if the course of business be such that the delivery is not made to the consignee, until he give notice. (Fish v. Newton, 1 Denio, 45.) The carrier is bound to deliver to the consignee personally, or to give notice to him ; or, if that cannot be done after reasonable efforts, he may be discharged from responsibility by storing them with some responsible bailee. (Price v. Powell, 3 Comst. 322.) Landing property on the wharf, without notice to the consignee, was held not a good a delivery in Ostrander v. Brown, (15 John. 39.) A delivery to a cartman, who was usually or always employed to transport the consignee’s goods, was- held not to be a good delivery in Goold v. Chapin, (10 Barb. 612.). The carrier was held liable for a loss after notice, and before actual delivery, in Foy v. Troy and Boston R. R. (24 Barb. 382.) When goods are received by the carrier, addressed and consigned, they must be understood, in the absence of any proof to the contrary, to have agreed to deliver them to the consignee. (See also Krender v. Woolcott, 1 Hilt. 223; Rowland v. Miln, 2 id. 150.) In Sweet v. Barney, (23 N. Y.

      Rep. 335,) a carrier, sued by consignee, was discharged by a delivery to the authorized agent of the consignee, which was held to be a good delivery as against the consignee. In this case the rule was laid down that an express carrier is bound to deliver the goods at their destined place to the consignee, or as the consignee may direct. In general, the delivery must be to the owner or consignee himself, or to his agent, or the goods must be carried to his residence br place of business, unless he directs otherwise. (See also Story on Bailm. § 543 ; 2 Kent’s Com, 604, 5 ; Angell Com. Car. §§ 315, 324, 5, 6.)
    1. It has been expressly held that the present defendants are common carriers, and liable to rules of law applicable to common carriers. (Russell v. Livingston, 19 Barb. 346. Sherman v. Wells, 28 id. 403.) The allegation that they do business as expressmen and forwarders is enough. They are common carriers. (Newstadt v. Adams, 5 Duer, 45.) Their receipt and admission brings them within the rule. (Blossom v. Griffin, 3 Kern. 569. Wilcox v. Parmelee, 3 Sandf. 610. Read v. Spaulding, 5 Bosw. 404. Sweet v. Barney, 23 N. Y. Rep. 335. M. M. Ins. Co. v. Chase, 1 E. D. Smith, 115. Ladue v. Griffith, 25 N. Y. Rep. 365.)
    2. In this case none of these requirements as to delivery have been fulfilled. The defendants did not deliver it to Munro personally. They did not give him notice of its arrival. They did not prove any usage. “ What is delivery is a question of law, not of opinion. It is not within the legitimate province of custom-to control or interfere with a question of this kind.” (Suydam v. Clark, 2 Sandf. 133. Haslam v. Adams Ex. Co., 6 Bosw. 243.) They did not prove any special contract limiting their liability to deliver. The insertion of the word “Junction,” in the receipt, fixed that, (the place on their line of transportation nearest to consignee’s house,) as the place of delivery, and the defendants were not obliged to go to the consignee’s residence. They were liable until the delivery was made, at the Junction, to the consignee personally, or to his authorized agent, or notice was given to him, or the goods were deposited with a responsible bailee. To exonerate themselves, they were hound to make some other responsibile party .liable. Instead of this, they delivered the box to Anderson, and the plaintiffs have suffered the loss of the goods.
    II. The plaintiffs never parted with their title to the goods in question. They did not sell to Anderson absolutely, nor did they give him, or consent that he should have possession of it, nor did he ever acquire title or right to the possession of the goods.
    1. Anderson was, in fact, engaged in defrauding the plaintiffs.
    2. The proof is clear and uncontradicted that the express terms and conditions of the sale were, that the plaintiffs should receive for the goods a note made by Anderson and D. C. Munro, and guaranteed by John Munro. The plaintiffs expressly refused to deliver the goods to Anderson, with his assent, but were to send them by the defendants to Munro, to be put under his control. The note was then to be executed and sent to the plaintiffs. If there was any failure in the fulfillment of these terms, the goods were to be returned to the plaintiffs.
    3> The conditions on which the plaintiffs consented to part with their goods were never performed.
    4. The plaintiffs, therefore, had good, sole, and exclusive title to the property, even as against a bona fide purchaser of the property. (Strong v. Taylor, 2 Hill, 326. Keeler v. Field, 1 Paige, 312. Dewolf v. Firemen In. Co., 20 John. 214. Russell v. Nicoll, 3 Wend. 112. Kimberly v. Patchin, 19 N. Y. Rep. 330. Copland v. Bosquet, 4 Wash. C. C. R. 588. Brower v. Peabody, 3 Kern. 123. Russell v. Minor, 22 Wend. 659. Leven v. Smith, 1 Denio, 571.)
    5. No title was acquired by means of the forged note sent to the plaintiffs. (Brower v. Peabody, 3 Kern. 123. Ash v. Putnam, 1 Hill, 302.)
    6. The invoices made out in Anderson’s name, did not, nor did their delivery to him, give him any title. It was was not necessary to repeat the terms of sale in the bill of items. The blank for terms was not filled. The terms were simultaneously stated elsewhere. The bills must be regarded as subordinate to, and interpreted in conformity with, the contract. (Russell v. Nicoll, 3 Wend. 119.)
    7. The emphatic point made by the plaintiffs on this conditional sale was, that they would not sell or deliver to Anderson, or have any direct understanding with him. in regard to the goods ; but, that they would deliver to Munro, so as to fix his liability to them.
    8. The defendant cannot dispute the plaintiffs, title; certainly not in favor of Anderson, who acquired nothing by his fraud, or unperformed contract. (Story’s Agency, § 217. Story on Bailm. § 450, 582. Sheridan v. New Quay Co., 93 Eng. Com. Law R. 617.)
    III. The plaintiffs, being the owners of the property, and entitled to control it, delivered it to the defendants, who were responsible parties.
    1. The legal import of the contract of the 9th June, 1855, was, that the plaintiffs expressly directed the defendants to deliver the goods to D. O. Munro, and to no one else; and that the defendant undertook to make a good delivery to him, and to no one else. Upon this agreement or obligation of the defendants, the plaintiffs parted with the actual possession of the goods ; upon assuming this obligation, the defendants acquired the actual possession of them.
    2. The defendants were therefore bound, in order to exonerate themselves, to deliver the goods; so as to charge some other responsible party, they were bound to deliver them to Munro.
    3. If they had made a good delivery to' Munro, he would have become liable to the plaintiffs for the value of the goods. He would not have acquired any right to them on the facts of this case, and if he had converted them to his own use, or had delivered them to Anderson, he would have become liable for their value. He was a responsible party. The plaintiffs would not have lost their property. They would either have received the note required as a condition of the sale, or Munro would have returned the goods, or become liable for their conversion. The defendants must prove that they made a good delivery to Munro; that he authorized Anderson to receive them for him, or they are liable to the plaintiffs. (Sweet v. Barney, 23 N. Y. Rep. 335.)
    IV. The delivery was not good as against Munro ; Anderson was not his authorized agent.
    1. The whole conduct of Anderson was a fraud upon the plaintiffs, and an attempt to defraud Munro. Out of these transactions the defendants seek to isolate such as will show authority from Munro to Anderson to receive the box. Even if there were such facts, the defendants cannot avail themselves of portions of the transaction, selecting such as are beneficial to themselves. No one can extract benefit from a fraud. They must take the whole transaction. (Nixon v. Palmer, 4 Seld. 400. Cobb v. Daws, 6 id. 335. Blossom v. Griffin, 3 Kern. 574.) In fact, they delivered the box to Anderson without any knowledge of the facts of this transaction. If they had known it all, they would have been bound to deliver the box to Munro in such a manner as to, charge him with the goods. Under the facts which they did know, that they had a valuable box addressed to Munro, and belonging either to him or to the consignor, and to no one else, they were equally bound to deliver it so as to charge Munro. This they have entirely failed to do.
    2. Munro did not give any authority to Anderson to get the box.
    ' 3. The delivery to Anderson was not afterwards ratified by Munro. Eo new fact was communicated to him. They must show that he had. a full knowledge of all the facts affecting his rights, and intended his acts to relate to the delivery. (Nixon v. Palmer, 4 Seld. 400. Seymour v. Wyckoff, 6 id. 224.)
    4. It is not pretended that Anderson obtained the box from the defendants on any representation that he came from Munro, or with any pretense of authority or agency.
    V. The delivery was not good as against Munro.
    ■ 1. In Sweet v. Barney, (23 N. Y. Rep. 335,) the delivery was to an authorized agent of the consignee, (from whom it was stolen before it reached the consignee,) and it was held sufficient against the consignor, because the consignee was charged, and the consignor must follow them. There was no question as to the authority of the agent. To bring this case within that rule, the defendants must show affirmatively, that Anderson was Munro’s authorized agent, and that they had made a delivery that charged Munro to the consignors. Munro had no title to the goods at all, and no delivery to him could be good that did not make him liable to the plaintiffs for their value. The defendants must show that, on the facts of this case, they have a good defense against Munro, on the question of delivery.
    2. The plaintiffs should have been allowed to show that, acting on the theory that the defendants had done their duty, and after notice, they had endeavored to make Munro liable on the alleged delivery by the defendants; that on that issue they had failed to hold him, after two trials, after notice to the defendants to supply the proof of the delivery, Munro himself and the defendants’ agent being witnesses on those trials. This evidence was rejected.
    3. Upon the reason of the decision in Sweet v. Barney, the converse of the rule, pari ratione, holds in the present case. Where the consignor, after notice to the carrier, and using the carrier as a witness, fails against the consignee, he will not, in his suit against the carrier, be defeated on the ground that the carrier has charged the consignee.
    VI. The defendants are liable for a, wrongful delivery to Anderson.
    1. The' carrier will be responsible for a delivery to a wrong person, though it be entirely by mistake or gross imposition, and, as against the consignee, even for a delivery to the owner. The wrongful delivery is treated as a conversion. (Cases before cited. Story on Bailm. §§ 450, 545, b. Angell on Carriers, §§ 324, 5, 6,432, 335. Powell v. Myers, 26 Wend. 591. De Mott v. Laraway, 14 id. 225. Wells v. Steam Nav. Co., 4 Seld. 375. Miller v. Steam Nav. Co., 13 Barb. 361. Per

      kins v. N. Y. Cen. R. R., 24 N. Y. Rep. 196. Davis v. Pattison, Id. 317.)
    2. All the facts of this case point to this misdelivery as the proximate and sole cause of the injury to the plaintiffs. The negligence is on the part of the defendants. The evidence of their agents shows that, without knowledge, inquiry, explanation, or excuse, the delivery was made to the first person who came for it.
    3. Sufficient demand has been made. Ho demand is necessary. (Davison v. Donadi, 2 E. D. Smith, 121. Dunlap v. Hunting, 2 Denio, 643. Esmay v. Fanning, 9 Barb. 176. Sharp v. Whipple, 1 Bosw. 557. Schroeder v. Hudson River R. R., 5 Duer, 62.)

    VII. The plaintiffs never ratified the delivery by the defendants to Anderson, nor are they estopped, as against the defendants, from alleging that it was wrongful.
    There is no estoppel of the plaintiffs as to the defendants. The plaintiffs have done nothing on which the defendants have relied or acted. (2 Abb. Dig. 587. Bank of Beloit v. Beale, 7 Bosw. 611, 627. Green v. Russell, 5 Hill, 183. Leger v. Bonaffe, 2 Barb. 475.)
    VIII. The plaintiffs have the title to the goods, and the right of action. Ho one but the plaintiffs has any property in the goods. Any presumption of ownership must give way to the real ownership, and the action he brought accordingly. (Price v. Powell, 3 Comst. 322. Dows v. Cobb, 12 Barb. 310. Green v. Glarke, 2 Kern. 343. Adams v. Bissell, 28 Barb. 382. Sweet v. Barney, 23 N. Y. Rep. 335.)
    IX. The fact that the value of the goods was marked $4000 does not bar the action, nor limit the defendants’ liability to $150.
    1. The words “just and true value ” are not to be construed with strictness. (Blossom v. Griffin, supra.) The provision of the contract, in this respect, is merely a limitation of the defendants’ extraordinary liability by law as common carriers. It does not shield them from their own neligence or wrongful act. (Stoddard v. L. I. R. R., 5 Sandf. 180-3-6.) They cannot stipulate that they may, on such a ground, convert goods and escape liability.
    2. There was no fraud by the plaintiffs. The value marked was a conventional sum fixing the rights and risks of the parties. They have not shown' that any greater care would have been taken if it had been valued higher. It came within the class of valuable packages. They received pay and took risk according to that valuation. This is the literal and reasonable construction of the receipt. The restriction is nob that they will not be liable at all; but goes only to the measure of liability. It cannot operate as a bar.

      H. C. Van Vorst, for the respondent.
    I. The delivery of the box of merchandize to the carriers consigned to D. C. Munro, without any explanation or statement to the contrary, gave rise to the presumption that he was the owner of the goods ; such is the legal inference from this act. (Angell on Carriers, § 497. Everett v. Saltus, 15 Wend. 475. Fitzhugh v. Wiman, 5 Seld. 562. Sweet v. Barney, 23 N. Y. Rep. 335.) The delivery of the goods so consigned, put them, so far as the carrier was concerned, at the absolute disposal of Munro.
    II. The delivery of the goods to the consignee or to his agent, or any delivery which would be satisfactory to, or which would be assented to, or ratified by him, would discharge the carrier.
    1. After the package gets in the hands of the carrier, he is to look to the consignee, the presumed owner; and if he makes a delivery of the merchandise which the consignor should direct, acquiesce in, or ratify, it would be sufficient. (Sweet v. Barney, 23 N. Y. Rep. 336. Angell on Carriers, § 323.)
    2. When the carrier is not advised that any different relation exists, he is bound to regard the consignee as the owner, and it follows, that a" delivery which discharges the carrier, as against the consignee, is good as against the consignor.
    III. The delivery- of the box to Anderson, under the facts and circumstances of this case, was a delivery of the same to Munro, the consignee ; such delivery was made with the knowledge and consent of Munro, and in fact, by his direction ; Anderson was authorized to go and get the box.
    IY. Munro immediately adopted and ratified the delievery of the box by the defendants to Anderson ’ he at no time objected, but assented to, and confirmed such delivery. The box was brought at once to his house by Aoderson, and was actually a delivery to him there.
    Y. The damages which the plaintiffs have sustained, do not arise from the breach of any contract made by the defendants ; it proceeds from the fact that the note sent by Anderson to them was, as to Munro, a forgery. It grows out of a fraud committed upon the plaintiffs by Anderson, their own customer, and through his failure to fulfil an executory contract with them ; of which contract the defendants knew nothing, and to which they were in no sense parties, and for a neglect to perform which by Anderson they are not liable,
    YI. The plaintiffs have ratified by their acts the delivery of the goods, in the manner in which it is proved to have been made, and are estopped from making any demand upon the defendants. First. On account of the delay in making any objection to the delivery. The delivery was made on the 11th June, 1855, and no complaint was made to the defendants until 3d July, 1856. Eor more than one year the plaintiffs had remained silent. It was the duty of the plaintiffs to have ascertained at once, and without delay, whether a proper delivery had been made, and if any objection was to be urged, it should have been interposed forthwith, so as to have enabled the defendants to protect themselves, while the transaction was fresh. The plaintiffs had dealings with Anderson for months afterwards. In February, 1856, they sold Anderson a bill of merchandize which was also directed to be sent to Daniel 0. Munro, Auburn, (not. Munro’s residence,) and which he did not receive; and of the shipment of which he was never advised, and which Anderson prust have got. Second.' The plaintiffs brought an action against Anderson in the United States District Court for Wisconsin, in the month of July, 1856, upon the “note in question,” alleging it to have been given for goods sold and delivered. This was after they had discovered the alleged fraud. After they had been advised by Munro that the note was a forgery, they still treated it as valid against Anderson, and as given for goods sold and delivered ; and claimed to recover from him on it. This was an affirmance of 'the- sale and delivery of the goods. The sale was no longer a “ conditional one,” as alleged in the complaint; it has no.w become, by plaintiffs’ election, perfect and complete, and the title of the goods became vested in Anderson. There is also evidence that the plaintiff’s have obtained a judgment against Anderson on the note. In July, 1856, the plaintiffs got about $900 of the goods from Anderson, It is submitted that the above acts amount to an affirmance of the sale and delivery of the goods. When a party, who has been defrauded, would rescind, he must do nothing to affirm the transaction. He must repudiate the whole matter at once; he cannot rescind, and at the same time affirm ; he cannot sue for the price, and at the same time claim a return of the goods. (2 Kent’s Oom. 1th ed. 480, and cases cited in the note.) And finally, it thus appears that after Anderson had received the box by the direction, and with his knowledge and consent, Munroe himself received about $300 of the goods. The plaintiffs, with a full knowledge of the fact, affirmed the delivery, and sued Anderson upon the note as an evidence of his indebtedness to them for the goods sold and so delivered. The plaintiffs have Anderson’s note still, and have a judgment upon it against him. In addition to all this, it is now sought by the plaintiffs to recover of the carrier the value of the merchandize, on the alleged ground that it was not delivered. These positions are inconsistent, and irreconcileable with the established principles of law and the maxims of equity. And it is insisted that before maintaining any action founded upon a recission of the contract of sale, or an alleged failure on the part of Anderson and Munro to fulfill the executory contract, or upon an alleged failure on the part of the Express Company to deliver the goods—all that had been received by plaintiffs and by Munro, whether money or note, should have been tendered and delivered to the defendants. The plaintiffs cannot hold on to these and still maintain an action against the defendants.
    VII. The various exceptions taken by the plaintiffs to certain ‘rulings and decisions of the' referee were improperly taken, and the rulings and decisions themselves are correct. But even had the decisions excepted to been in favor of the plaintiffs, it would not have changed the result, as the sole ground upon which the referee based his judgment was, “ that the delivery by the defendants of the said box in the manner and under the circumstances above found, and repeated, was a sufficient performance by the said company of their contract or obligation to deliver the same.” Upon the other grounds of defense set up, the referee passed no opinion.
   By the Court,

Robertson, Ch. J.

Mr. Munro, to whom the box of jewelry in question was directed, had neither made nor offered to make any contract with the plaintiffs ; that fact was not communicated to the defendants ; they were equally ignorant of whatever fraud, if any, had been perpetrated by Anderson in inducing the plaintiffs to send it so directed. Their duty ended with delivering the goods either to Munro or some one'authorized by him to receive them. Whether Munro was a party to the fraud in taking possession of them, or was deceived by Anderson in procuring authority from him to receive them, was immaterial to the defendants. Munro was the trusted agent of the plaintiffs, if not the presumptive owner of the goods, so far as they were concerned. (Sweet v. Barney, 23 N. Y. Rep. 335, 6. Everett v. Saltus, 15 Wend. 475. Fitzhugh v. Wiman, 5 Seld. 562.)

Munro knew that Anderson meant to buy jewelry in New York, for he had refused to indorse his note for the purpose, but was destitute of any information from the plaintiffs as to the sending of the box or the object.of its direction. Under these circumstances, Anderson, on calling on him, informed him, “he (Anderson) had a box containing jewelry directed to him (Munro,) which had been so directed at the request of one of the plaintiffs, and asked him to get it, because it was so directed.” Munro first said, he (Anderson) could get it just as well without him, as if he were there ; to which Anderson replied, “ he did not know as they would let him have the box.” Munro said “ he thought they would ; that he (Anderson) could get the box as well without him as with him ; ” when Anderson repeated they would not let him have it. Munro again said “ he thought they would,” but finally told him “ to get the box.” Upon this, Anderson immediately left to get the box, brought it to Munro’s house, told him he had it; declined to bring it in, and carried it away. Munro not only made no objection to all this, but subsequently received from Anderson part of the contents, in payment of an old debt. He was so strongly impressed with the belief that he did authorize Anderson, in some way, to get the box, that he testified that he “ did not know but Anderson asked him if he (Anderson) should tell them that he (Munro) told him he might get it, and if he did, he (Munro) told him to say so.” This, it is true, is merely hypothetical when standing alone, but, taken in connection with the rest of Munro’s testimony, is strong evidence of the impression on his mind, that he had been applied to by Anderson for authority to get the box, and that he used some language warranting Anderson in getting the box, as his agent. Without such authority, the latter, in order to get it, must have been guilty of the crime of obtaining it by false pretenses, or a constructive larceny. Munro then knew that Anderson applied to him for authority, and immediately went to get the box, and on the strength of what he said obtained it, brought it to his (Munro’s) door, and carried it away, he subsequently receiving part of the contents. After what passed, he must have supposed that Anderson used his name to get the box, or in some way induced the defendants to believe he had his authority for getting it. Yet he seems to have made.no inquiry on the subject, nor does he appear to have warned the defendants that they had delivered the box without authority. Probably he thought he never could be made liable, provided he did not receive the box personally ; he had made no personal contract with the plaintiffs ; Anderson procured the box to be sent on, and was the party to be benefited; it was sent to a. station near his house, and might have been a matter of mere accommodation.

There was, therefore, at least, some evidence that the defendants delivered the property in question to Anderson, as Munro's authorized. agent. Besides this, the plaintiffs, a few days afterwards, received a letter from Anderson, stating that he had examined the goods sent, with the bills, and found all correct, with certain specified exceptions, to which the plaintiffs replied, explaining the objections. A note signed by Anderson for the price of such goods, with forged signatures, was received by the plaintiffs, not to become due until a year afterwards. The latter, on discovering .the forgery, which was after such note became due, commenced a suit on it, in Wisconsin, against Anderson, in which an attachment was issued. One of the plaintiffs, in an affidavit made to obtain such an attachment, stated that such npte was given for a valuable consideration, to wit, “ for goods sold and delivered.” The plaintiffs, after the notice to them, by the correspondence with Anderson, that the goods had been delivered to him, thereby ratified such delivery. (2 Kent’s Com. 7th ed. 480, note, cases cited. Green v. Clark, 5 Denio, 503.) It is true, they were probably induced not to make any objection or inquiry for a year by the forged note, but after the discovery of such forgery, they still assumed the ownership of the note, by suing upon it, and swearing that it was received for goods sold and delivered, and thereby were enabled to seize certain goods. The defendants never heard an objection to the delivery until a short time before they were sued, and after the suit against Anderson, although as between the plaintiffs and Anderson, the delivery to, or rather retention of, the goods by the latter, by the agency of a forged note, would not have prevented the former from reclaiming them. Yet, if the plaintiffs had, even by such means, been induced to sanction their delivery by the defendants, they would thereby have discharged the latter from liability as carriers. They not being parties thereto, were not responsible for impositions practiced on the plaintiffs by Anderson, to induce them to sanction the delivery after knowledge of it.

The referee has not found expressly the agency of Anderson in receiving the goods for Munro, or the sanction by the plaintiffs of their delivery. One or the other was necessary to sustain his report and judgment, but there is sufficient prima facie evidence of both. They are certainly, at least, not so clearly disproved as to warrant an interference with such judgment.

The judgment must be affirmed, with costs.