text:
    *Philips, Beckel & Co. v. The Knox County Mutual Insurance Company.
    ■Where a building and the land on which it stands is the property of an incorporated company, the stockholders of the company can not insure the same as their individual property in a mutual insurance company.

    Error to the Supreme Court of Knox county.
    On July 27, 1848, Horatio G. Philips, Daniel Beckel, Jonathan D. Philips, and Samuel D. Edgar, traders in company, using the name of Philips, Beckel & Co., commenced an action against the “Knox County Mutual Insurance Company,” and declared in assumpsit upon a policy of insurance, dated October 27, A. d. 1847. To this declaration the defendant filed a plea of non assumpsit.

    At the December term of the court of common pleas of Knox county, 1849, the issue joined was submitted to the court, and by the court that issue was found in favor of the defendant.
    Thereupon the plaintiffs moved for a new trial, on the ground that the finding of the court was against the law and evidence in the case. This motion was overruled, and judgment entered iu pursuance of the finding of the court.

      To the decision of the court, in overruling the motion for a new trial, the plaintiffs excepted,’ and their bill of exception was allowed, sealed, and made part of the record.
    *The facts sufficiently appear in the opinion of the court.
    The error assigned in this case when before the Supreme Court, was, that the court of common pleas erred in overruling the motion for a new trial. And the error now assigned is, that the Supreme Court erred in affirming the judgment of the court of common pleas.
    H. B. Curtis & Mitchell, for plaintiffs, claimed:
    I. That there was, in point of fact, no misrepresentation of the title in the application by the assured, in the present case.
    1. The statement in the application for insurance is, that “the fee of the land is held by Philips, Beckel, Edgar & Philips, leased perpetually to Johnson & Douglas.”
    The application is by “ Philips, Beckel & Co.”
    The naked fee was in the “Dayton Hydraulic Company,” but the persons named in the application as holding the fee, composed the “Dayton Hydraulic Company.” It is not denied by the defendants but that these persons were at that time the legal owners of the naked fee ; but it is claimed that they held it not in their individual, but in their corporate capacity. It is nowhere in tho application so alleged. In what manner they hold it, whether in individual or corporate capacity, is not pretended to bo given.
    In stating the fee as they did, the applicants stated a conclusion of law, in which they were mistaken, but which mistake is apparent upon the face of the application itself. The application shows that the premises were leased perpetually to Johnson and Douglas.
    By the law, as held in this state, a perpetual lease amounts to a transfer of the fee. Loring v. Melondy et al., 11 Ohio, 358.
    In Boyd’s Lessee v. Salbert, 13 Ohio, 213, it was said that “the question whether a lease be.realty or personalty is open;” but in the later case of the Northern Bank of Kentucky v. Roosa et al., 13 Ohio, 334, the question came fairly and ^legitimately before the court, and is determined substantially the same as in Loring v. Melendy et al.
    And under the law as declared by our courts of last resort, this “perpetual lease” is the same in every particular as a fee-simple estate.

      The( right of mortgagees to insure, for their own protection, mortgaged pr emises, we do not understand to be disputed. 2 Barn & Ald. 194. And without specifying their interest to consist in a mortgage. 4 Dall. 421; 1 Wash. C. C. 409; 2 Barn & Ald. 193 ; 2 Marsh. 509.
    When a misstatement of title has not tended to mislead the judgment of the underwriters, because in no degree affecting the risk) it does not avoid the policy. 20 Pick. 389 ; 8 Pick. 86 ; 10 Pick. 525.
    2. We claim that the allegations in the policy, in order to become matter of warranty, must bo of some fact or circumstance relating to the risk. 1 Phil. on Ins. 348; Mackil v. Pleasants, 2 Binn. 363 ; Pawson v. Watson, Cowp. 785; Le Megurier v. Vaughn, 6 East, 387; Dobson v. Sotheby, 1 Mood. & Malk. 90 ; Ellis on Ins. 59 (4 Law Lib.) ; Guy Catlin v. Springfield Fire Ins. Co., 1 Sumn. 434; Bean v. Stupart, Doug. 11; Hyde v. Bruce, 3 Doug. 213; Marsh. 347; Phillips, 346 ; Ruan v. Gardner, 1 Wash. C. C. 147.
    3. Having sufficiently shown that, to constitute a warranty, the statements contained in the policy must relate to the risli, wo will now, thirdly, inquire whether this statement of title did relate to the risk. It has no connection with it—no bearing upon it. 2 Camp. 610; 1 Phil. on Ins. 410 ; 13 Wend. 92; 16 Wend. 481. 2 Denio, 75, does not overrule these authorities.
    4. That the mortgages from Johnson & Douglas to plaintiffs, were not “ incumbrances,” within the meaning of section 9 of defendants’ charter; and consequently, to omit to state them could not be “ material to defendants.”
    To construe this section sensibly, we must look at the object ^intended. It was certainly one of two things—perhaps both : first, to give greater security to the company, by reason of their lien for the unpaid premium note; secondly, to inform the-company how great was the pecuniary inducement of the assured to watch and protect the insured premises.
    Now, “incumbrances” upon any interest which the applicant might have in'the premises, would be material to the defendants to know, because they would affect both the above supposed objects. But an accretion of interest could be no incumbrance. It would promote, not impede, both of said objects of the law.
    Odlin & Lowe, on same side.
    R. C. Hurd, for defendants.

      The finding, ruling and judgment of the court below, and on the circuit, were all right, because of—
    I. The breach'of plaintiffs’ express warranty as .to title.
    II. The misrepresentation by plaintiffs of the title and incumbrances.
    III. The provisions of ninth section of the charter of the defendants.
    I. The express warranty of the plaintiffs as to title and ownership was broken.
    An express warranty is defined to be “ an agreement expressed in the policy, whereby the assured stipulates that certain facts relating to the risk, are, or shall be true; or certain acts relating to the same subject have been or shall be done.”
    The circumstance or act warranted need not be material to the risk, and in this respect differs from a “representation;” and though it is always a part of the policy, it may, “ like any other part of the express contract, be written in the margin, or contained in proposals and documents expressly referred to in the policy, and so made a part of it.” 1 Phillips on Insurance, 346, 347; Dennis v. Ludlow, 2 Caine, 111; Bean v. Stupart, Doug. 11; Kenyon v. Berthon, Doug. 12, n.
    *For the defendants it is claimed that the statement in the application in regard to the title and ownership of the promises “ relates to the risk.” Jenning v. Chenango County Mutual Insurance Co., 2 Denio, 75 ; 1 Phillips on Insurance, 351.
    “A warranty,” says Lord Mansfield, “must be strictly performed': nothing tantamount will do.” Rawson v. Watson, Cowp. 785; Blackhurst v. Cochell, 3 Term, 360; De Hahn v. Hartley, 1 Term, 343; 2 Term, 186.
    II. But if there be no express warranty, the policy is void by reason of the misrepresentation and concealment of the plaintiffs.
    “A representation is a material fact stated, before completing the contract, by either party to the other; and a misrepresentation is the statement of such a fact, which turns out not to be true.
    “By a material fact is meant one that shows the nature and extent of the risk, and may induce the other party to enter into the contract” 1 Phillips on Insurance, 214.
    “ The test of materiality is the probable influence of the statement made on the mind of the underwriter.” 1 Arnold on Insurance, 515, sec. 194; 1 Phillips on Insurance, 214.
    Under tho ninth section of the charter the fact of title and ownership was material. 1 Arnold on Insurance, 518, 567, sec. 210.
    It is said, however, that this fact ceases to be material when it is shown that the plaintiffs were the sole stockholders in tho “ Dayton Hydraulic Company.” This incorporated company is a distinct and independent person in law.
    Tho right of property was in the corporation, liable to be sold or incumbered by them, and persons dealing with the corporation in regard to the insured property, would, of course, take it discharged of all equities derived simply through the individual stockholders.
    Tho charter says, the insurance “ company shall have a lien upon the lands against the insured,” etc. Who are the*“insured ?" “Philips, Deckel, Edgar & Philips.” It is not the “Dayton Hydraulic Company.” Can it be pretended that the lien thus intended to bo given, could be enfored against the “ hydraulic company.”
    III. The legislature has established the law for these parties. Section 9 of the charter requires the applicant to set forth in his application his “ true title;" and, in' default thereof, declares that the “ policy shall he void.”

       This decision is made mainly upon a construction of the charter of the Knox County Mutual Insurance Company, which gives the company a lien on property insured, including the land on which the insured buildings stand. By tlie charter, a sale of the insured property renders the policy void, and section 9 declares that if the insured have a less estate than an unincumbered title in foe simple, to the buildings insured and the lands covered by the same, tlie policy shall be void, unless the true title of the insured and the incumbrances be expressed in the policy and in the application therefor.

   Hitchcock, C. J.

The bill of exceptions in this case shows that on the trial in the court of common pleas, the plaintiffs offered in evidence the original policy of insurance, described in the declaration, and which, with part of the act of incorporation of the defendant, is recited in the bill of exceptions. This policy of insurance is in terms similar to the ordinary policies of mutual insurance companies. The property insured is an oil-mill and machine shop, insured at $800, situate at Dayton, and the lot on which situated, is particularly described. The application of the plaintiffs is referred to for a more particular description, and as part of the policy. The application so referred to, and made part of the policy, is also made part of the bill of exceptions. From this it appears that the property, for the insurance of which the application was made, was represented as the property of Philips, Deckel & Co., and that to the question as to “ who holds the fee of the land on which said buildings stand, whether incumbered by •mortgage,'and to what amount,” the reply was, “ Philips, Beckel, Edgar and Philips, leased perpetually to Johnson & Douglas”— the applicants—and insured, thereby stating the fee to be in themselves, although subject to a perpetual lease, and no other incumbrances are named. It is unnecessary to insert hei’e the sections of the statute referred to in the bill of exceptions, as they will be referred to hereafter. The by-laws of the company, attached to the policy, were made part of the bill. It was admitted that the buildings intended to be insured were destroyed by fire, on or-about March 26, 1848, and proven that necessary preliminary steps had been *taken to charge the defendants, that domand of payment, etc., had been made. The insurance was for five years.

Defendant gave in evidence the original application before referred to, and also transcripts from the record of certain deeds, which are also made part of the bill. These records show, first, a deed from Philips, Beckel & Co. to the “Dayton Hydraulic Company,” an incorporated company, for the lands on which the insured property was situated, bearing date June 18, 1846.

Second. A lease from the “Dayton Hydraulic Company ” to Johnson & Douglas, for the same premises, for ninety-nine years, renewable forever. This instrument bears date July 9, 1847.

Tim'd. Two deeds of mortgage from Johnson & Douglas, dated the same 9th day of July, upon the same premises, to the “ Dayton Hydraulic Company:” the one to secure the payment of two notes for two hundred dollars each—one due in one, and the other in two years; and the other to secure the payment of two notes of like amount, one due in three, and the other in four years.

The plaintiffs then proved that they were the sole stockholder’s in the “ Dayton Hydraulic Company.”

In the bill of exceptions, the reasons are assigned which induced the court to find the issue joined in favor of the defendant, but with this, this court has nothing to do. The simple question for us to decide is, whether, under the circumstances disclosed in the bill of exceptions, the plaintiffs were entitled to a verdict and judgment. If they were, then the court of common pleas erred in overruling the motion for a new trial. If the plaintiff were not entitled to a verdict and judgment, then there is no error.

It is apparent that here was an insurance effected upon certain buildings as the property of the plaintiffs, and represented by the plaintiffs, in their application, to stand upon land, the title to which in fee simple was in the plaintiffs. A recovery is resisted by the defendants, on the ground that the ^property was not in the plaintiffs, and the title to the land itself, upon which the building was situated, was not in the plaintiffs. On the part of the defendants, it is claimed that this application having been by express terms made part of the policy, the representation as to the title is a warranty, and to be treated as such. On the other hand, it is claimed that it is a mere representation, and although it may not be true in point of fact, still it can not effect the policy unless it relates to things material to the risk. Numerous authorities are cited by the plaintiff’s counsel, and perhaps if they are right in the position that this is a mere representation, the authorities cited might, in ordinary cases of insurance, establish their right to recover.

It must be remarked, however, that in most or all the cases referred to, the suits were against individual insurers, or against companies not mutual insurance companies, and when a case arises cither in favor of or against an incorporated company, we must look into the charter or act incorporating the company, to ascertain its rights, its privileges, as well as its duties, its liabilities, its responsibility. If a fire insurance company has a lien upon the land upon which the building insured stands, no matter how small, it would seem to be material, that the true situation of the property should bo made known', and that a false representation might with propriety be held to avoid the policy.

As to the question whether, in this case, the representation as to title was a warranty, we incline to the opinion that it was. It was made part of the policy, in express terms; but it is not, in fact, necessary to decide this question.

The “ Knox County Mutual Insurance Company ” was incorporated by act of the General Assembly, of March 14, 1838 (36 Ohio L. L. 288), “ for tho purpose,” as expressed in the first section of the act, “ of insuring their respective dwelling-houses, stores, shops, and other buildings,” etc., “ against loss or damage by fire,” etc. The second section provides that all persons who shall insure in said company shall ^become members thereof, and shall continue to be members as 'long as they shall continue to be insured.

The sixth section, which is made part of the bill of exceptions, is as follows : “Every member of said company shall be, and hereby is, bound and obliged to pay his proportion of all losses or expenses happening or accruing in or to said company, to the amount of his deposit note, and no further; and all buildings insured by and with said assurance, together with the right, title, and interest of the insured to the lands on which they stand, shall be pledged to said company; and the said company shall have a lien thereon against the insured, during the continuance of his, her, or their insurance.”

By this section a lien is given to the company to secure the payment of assessments for losses, etc., not only upon the buildings insured, but upon the land upon which such buildings may stand. It is material, then, that before an insurance is made, the company should be truly informed as to the titles to both buildings and land. Upon that title depends their security; for it will not be contended, I apprehend, that the insurance would operate as a lien where the assured had no title. In a subsequent section it is provided that if, after insurance, the insurance shall alienate the property, the policy shall become void; and this, I suppose, upon the general principle that the insured must have an insurable interest, and that, if at the time the insurance is effected, he has such interest, but parts with it before the loss, he can not have an action upon the policy. In order to recover upon that policy, ho mutt have had an interest at the time of the insurance, and at the time of the loss.

Another section is recited in the bill of exceptions. It is the ninth of the act, and is as follows: “ The company may make insurance for any time not exceeding ten years, and any policy of insurance issued by said company, signed by the president and countersigned by the secretary, shall be deemed valid and binding on said company in all cases where the assured has a title, in fee simple, unincumbered, to the building *or buildings insured, and to the lands covered by the same ; but if the insured have a loss estate therein, or if the premises be incumbered, the policy shall he void, unless the true title of the insured, and the incumbrances of the premises, be expressed therein, and in the application therefor.”

It is contended by counsel for defendant, that it is not material to the risk whether the insured owns the property, or whether his application is in accordance with the truth or not; and therefore the policy can not be defended against, although a falso representation has been made.

But such is not the law by which this company, of which these plaintiffs were members by insuring therein, was incorporated. That provides that the policy shall be binding, provided the insured is owner in fee simple of the building insured, and the land upon which it stands. But the same law prescribes that if tbo insured does not so own the building and land, “the policy shall be void, unless the true title of the insured, and the incumbrances of the premises, be expressed therein, and in the application.” Now if the law, in a certain state of case, declares the policy void, how can this court declare it otherwise ?

In the application made by Philips, Beckel & Co. to the insurance company, they represented themselves to be the owners, in fee simple, of the buildings sought to be insured, and of the land upon which those buildings were situated. If they were such •owners, then the policy is binding upon the company, and the plaintiffs should have recovered a judgment. But were they such owners? It is scarcely jmetended. True, they had once been the owners; but months before this application was made they had conveyed the property to the “Dayton Hydraulic Company.” This company was a body corporate and politic, capable of suing and being sued, of receiving, holding, and conveying land, etc., created by an act of the general assembly of the state, of the date of March 1, 1845. The fee of the land was in this company, not in these plaintiffs. The policy, then, does not fall within the first part of the *ninth section of the act incorporating the “Knox County Mutual Insurance Company.”

Does it fall within the second clause of that section? In order that a policy may be held good under this last part of the section, it is necessary that the applicants, in making the application, not having the foe in themselves, should, in their application, state their “true title” and also “ the incumbrances;” otherwise the policy is void. This.they did not do. In fact, they had no title or interest, except as stockholders of an incorporated company, in which company the title was vested. This fact was not disclosed to, it was concealed from, the insurance comjjany. Besides, there was a mortgage upon this property, not to these plaintiffs, but to the “Dayton Hydraulic Company.” This was an incumbrance, but was not disclosed.

But it is said that these plaintiffs wore the sole stockholders of the “Dayton Hydraulic Company,” and might therefore well insure the property of that company as their own individual property. We think not. We can find no authority sustaining any such principle, and no one is referred to. An execution upon a judgment against Philips, Beckel & Co. could not be levied upon the property of the “ Dayton Hydraulic Company.” Neither could an execution upon a judgmentagainstthe “Dayton Hydraulic Company” bo levied upon the individual property of Philips, Beckel & Co. In truth, the property of the hydraulic company is just as distinct from thedndividual property of these plaintiffs as would bo the individual property of Horatio G. Philips from that of Daniel Beckel.

In fact, these plaintiffs had no insurable interest in this property whatever. The fee was in another person ; not in a natural person, but an artificial person—a corporation. If they had any insurable interest, it was the stock which they held in the hydraulic company, and this they did not attempt to insure.

In the opinion of this court, the court of common pleas did not err in refusing to grant a new trial, and the judgment of the Supreme Court is affirmed, with costs.


source: Caselaw Access Project

author: Rannet, J.

license: Public Domain

text:
    *Duncan McDonald v. Tile Administrator of Wm. Black, deceased.
    A mortgagee can not claim the benefit of a policy of insurance effected upon the mortgaged property by the mortgagor. Each has insurable interests, but neither can, as a general rule, take advantage of an insurance effected by the other.
    The rule is the same, although the policy effected by the mortgagor may contain the words “for whom it may concern,” if, at the time, the mortgage upon personal property has not become absolute at law by failure to pay the money.
    The death of a party revokes a power of attorney given by him, not coupled with an interest.
    A party receiving property, part of the assets of an estate, can not, when sued for it, set off a debt due from the estate to him.

      Whether a Hen attaches to a steamboat for advances made by one part-owner upon the shares of the others, quajre. But in any event, to create such Hen, it must be shown that such advances were made to discharge debts and liabilities incurred with the consent of all the owners, and for which they were all liable.
    Error to the court of common pleas of Columbiana county.
    The action in the court below was assumpsit, brought by Daniel T. Lawson, as administrator of William Black, deceased, and was commenced November 13,1846, to recover of McDonald one-third of the amount of money which McDonald had received of tho Croton Insurance Company, upon a policy of insurance on the steamboat Columbiana, owned by Black, McDonald and Diller, in equal proportions. The policy of insurance commences thus :
    “By the Croton Insurance Company: On account of Messrs.
    Diller, McDonald and Black—
    “ Does make insurance and cause whom it may concern to be insured, lost or not lost, at and from St. Louis, Mo., to navigate the Missouri river from September 6,1845, at noon, to October 6,1845» at noon, in the sum of $2,100, of the good steamboat called the Columbiana, etc.....And in case of loss, such loss to be paid in thirty days after proof of loss and proof of interest in the said assured, etc. Dated September 6, 1845.”
    The facts sufficiently appear in the opinion of the court. *Umbstaetter, Stanton & Wallace, for plaintiff in error: The action below was assumpsit, to recover insurance money on one-third of the steamboat “Columbiana,” of which Black was part owner, that had come to the hands of Duncan McDonald.
    In the spring of 1845, Duncan McDonald and William Black became purchasers, each of the one-third of the steamboat “Columbiana.” Mr. McDonald advanced for Black his share of the purchase money, amounting to $530—to secure which advance, Black gave his note and executed a mortgage of one-sixth of the boat.
    On September 6, 1845, Diller, captain of the boat, and a joint owner, effected an insurance of $2,100 on the boat, for the benefit and on account of “ whom it may concern.”
    Shortly aiterward Black died. Soon afterward the boat was lost; and on December 21, 1845, the insurance money was paid over—the portion coming on Black’s interest ($485) being received by Duncan McDonald, and claimed under his mortgage. McDonald had paid off the debts of the boat ($461), for one-third of which Black, as part owner, was liable, and McDonald claimed an offset .therefor.
    On the trial it was claimed :
    1. That McDonald had a right to receive the insurance money, under and by virtue of his mortgage.
    2. That he had a right to set off his advances, made for and on account of Black, on the purchase of the boat.
    3. That he was also entitled to set off one-third of the payments he had made for the boat’s debts.
    All of which claims were overruled by the court.
    I. To show that the court erred on the first point, the case of Rogers v. The Howard Insurance Company, 6 Paige’s Chancery, 583, is in point.

      “ Where the agents for the proprietors of a steamboat effected an insurance upon the boat, for the benefit and on account of whomsoever it might concern at the time of the loss, if any '^should occur: Held, that a mortgagee of the interest of one who was an owner at the time of the insurance, and for whose benefit the policy was underwritten, had a right to the mortgagor’s portion of the insurance money to the extent of the debt secured by the mortgage.”
    II. The mortgage therefore covered, by its express provisions, one-half of Black’s interest. But McDonald had advanced the whole purchase money, and had a clear right to set it off in any action Black might have brought against him.
    The administrator stands in the same position that Black held ; and his suit is subject to the same set-offs that the claim would have been subject to, if sued in Black’s lifetime.
    III. The money was proceeds of a boat of which McDonald and Black were part owners. The boat was liable for its debts; and so were the joint owners.
    McDonald had paid &461 of the debts of the boat, to one-third of which Black’s interest in the boat was subject.
    In receiving Black’s share of the insurance money, McDonald was bound to account; but that account was to be taken as between part owners, and McDonald might well set off what he had paid on account of Black, or his interest, what he had received therefrom.
    Upon this principle, all accounts between part owners are taken.

      In rejecting this set-off the court also erred.
    Va. K. Upham and Ewing & Hartshorn for defendant in error:
    It will not be denied by the counsel for the plaintiff in error, that the plaintiff below is entitled to recover, unless ho is prevented by the chattel mortgage held by the plaintiff in error, or by the payment of debts due by the steamboat “Columbiana’,’ out of the insurance company.
    1. As to the chattel mortgage. This mortgage was executed on July 15, 18-15, and given to secure a promissory *note of the same date, calling for §530, payable to D. & D. McDonald in ten months after date. It will be seen that this note was not payable to Duncan McDonald, the plaintiff in error, nor was it due and payable either at the decease of Black, or at the time of the loss of the boat, nor when the money in dispute was received. The promissory note of §530 was the debt of Black, due and owing to D. & D. McDonald; 'the mortgage or bill of sale of the boat was merely collateral security for the debt. At the loss of the boat the security was gone, but the debt remained operative and binding upon Black or his representatives. The mortgage, or bill of sale of the boat, gave to D. & D. McDonald no claim upon the insurance money. The insurance was effected by one of the joint owners of.the boat, for the benefit of himself and the other joint owners, and upon the bajtpening of a loss the insurance money became payable to the owners in proportion to their respective interests.
    Under this mortgage or bill of sale, D. & D. McDonald had an insurable interest in the boat, which they might have protected by effecting an insurance upon their own account, or for their own benefit. 10 Ohio, 223; Higginson v. Dall, 13 Mass. 96; Locke v. N. A. Ins. Co., 13 Mass. 61; Seaman v. Loring, 1 Mason, 28 ; Russell v. Union Ins. Co., 1 W. C. C. 409; 1 Wend. 35; Hill-yard on Marine Insurance, 66. “ Mortgagor and mortgagee may both insure the samo vessel.” Traders’ Insurance Co. v. Robert, 9 Wend. 404. The principle and rule is the same in fire insurance as in marine insurance. Carpenter v. P. W. Ins. Co., 16 Pet. 495 ; Strong v. Marine Insurance Co., 10 Pick. 40.
    In this connection, we also refer the court to the case of Hatcher v. Glass, decided in Portage county by the Supremo Court on the circuit, in 1850. Hitchcock and Caldwell, Judges, present.
    A policy of insurance is a personal contract of indemnity, not an incident to the subject insured; and it docs not pass *with a transfer of the property. Smith’s Mercantile Laws (H. & G. ed.), 372; 11 Mees. & Wels. 10; 2 Pick. 249, 258; Wilson v. Hill, 3 Met. 68; 16 Wend. 397.
    No one but the assured, or their legal representatives, can avail themselves of the contract of insurance, except where the policy has been assigned, bona fide, with notice to the underwriter, and with his assent, either express or implied. Comyn’s Dig. 5, tit. Mer. 121; Carroll et al. v. Boston Marine Ins. Co., 8 Mass. 515.
    And it is now doubted whether the policy can be assigned, even with the assent of the underwriter. 2 J. Duer, 51; 3 Hill, 88; 5 Wend. 200.
    But it is claimed that, by the terms of the policy, the plaintiff in error has the right to hold the insurance in money. The policy is “ on account of Messrs. Diller, McDonald & Black,” and the Croton Insurance Company “does make insurance," and cause whom it may concern to be insured.” Now, the plaintiff in error claims, that inasmuch as he and his partner had a mortgage, or bill of sale, upon the boat, that he is concerned in its loss, and entitled to all, or a portion, of the insurance money.
    “The phrase ‘whom it may concern,’ is a technical one, and is understood to mean only such as. are in contemplation of the contract. Under this term the policy will cover the interest intended by the person ordering the policy, although the existence of such interest was unknown, not only to the insurers, but to the broker or agent effecting the policy ; and these words may inure for the. benefit of any person intended to be insured, though he gave no authority for the purpose, if he afterward adopt it, which ho may do not only before, but alter a loss takes place.” Smith’s Mercantile Law, 329, n.; 1 Phillips on Ins. 152, 153, 157; 3 Kent, 251; Buck v. Chesapeake Ins. Co., 1 Pet. 151; 8 Met. 348.
    The case shows conclusively, that Daniel McDonald', agent for the plaintiff in error, received of the agent of the boat, the intestate’s share of the insurance money. This money should *have passed into the hands of the administrator. The death of Black was a revocation of Stilwell’s authority. When the boat was lost the joint interest of the owners, of course, ceased, and each had a separate interest in the insurance money, and each could sustain a separate suit for his share. 1 Chitty, 26; 2 Caine, 166; Story on Partnership, 284, 285.
    McDonald had no right either to receive Black’s share of the insurance money, or to pay out any portion of it upon debts due by the boat. At common law he would be treated as an executor de son tort.

    A® to payments by McDonalds: It will not be seriously contended that the debts owing by the boat to hands, for supplies, etc., constitute a lien upon the boat, much less a lien upon the insurance money. Under our water-craft law, the debts on account of the boat do not constitute a lien until seizure by process of law.
   Rannet, J.

The plaintiff in error was sued in the court below for money had and received for the use of the plaintiff below. He pleaded the general issue, and gave notice of set-off; and the intervention of a jury being waived, the cause was submitted to the court, who found in favor of the plaintiff below the- sum of $612.16, for which, after overruling a motion for a new trial, they entered a judgment against the plaintiff in error, to which he duly excepted. The facts, so far as they are necessary to be stated, to a clear understanding of the questions raised, are as follows: The plaintiff in error, the defendant’s intestate, and one Jeremiah Diller, were the owners, in equal proportions, of the steamboat Columbiana. Diller was in command of the boat as captain, and running her upon the Missouri river. On September 6, 1845, he effected an insurance upon her for one month, for the sum of $2,100, in the Croton Insurance Company, at St. Louis. The policy states the insurance to be made on account of Messrs. Diller, McDonald & Black, and that the company did cause “whom it may concern to be insured, lost or not *lost,” for the period before stated. On July 15,1845, Black gave to D. & D. McDonald, the plaintiff in error, and his brother, partners, a bill of sale, by way of mortgage, upon one-sixth part of the boat, to secure the payment of a note of that date, for $530, payable in ten months. On September 10, 1845, Black gave a power of attorney to one Charles C. Stilwell, “to control, sell, or otherwise dispose of his interest, being one-third, in the steamboat Columbiana, now supposed to be up the Missouri river.” Black was at the time sick, and in a few days thereafter died. After his death, Stilwell and the brother of the plaintiff, and on his behalf, went to St. Louis, and the more certainly, as he states, to effect a settlement with Diller, they concealed from him and all others the death of Black. When they arrived there they found the boat had been lost during the time covered by the policy, and the result was that the insurance company settled and paid the amount of the insurance, which, after deducting certain charges upon it by the agents of the boat, was paid over ; one-third to Diller, amounting to $539.12, and the other two-thirds to McDonald, he receiving the third belonging to Black’s interest, by the consent of Stilwell, in payment of the mortgage before referred to. The plaintiff in error also proved that since he received the money he had paid debts of said steamboat, amounting to the sum of $461.

From this state of facts, the court of common pleas were of opinion that the administrator of Black was entitled to recover said sum of $539.12, being one-third of the insurance money received, with interest, and subject to no deduction or offset, and for this they rendered judgment. It is claimed they erred for three reasons:

1. That McDonald had a right to receive the insurance money under, and by virtue of, his mortgage.

2. That he had a right to set off his advances, made for and on account of Black, on the purchase of the boat.

3. That he was entitled to set off one-third of the payments he had made for the boat’s debts.

*We will notice these several positions in the order in which they are stated.

The mortgage attached as a lien upon the boat; the mortgagor afterward effected an insurance upon it, and if the policy attached as an incident to the thing mortgaged and insured, it would seem to follow that without any special provision in the policy, the mortgagee would be entitled, upon the loss of the principal thing, to follow all the incidents that had attached to it, and subject them for his indemnity. But it is well settled that this is not the nature or character of a contract of insurance. It is a mere personal indemnity against loss to the person with whom it is made, or those falling within the scope of its provisions. As soon as the interest of such person ceases in the property, the contract is at an end, from the impossibility of any loss happening to him afterward. It is not assignable without the consent of the insurer, and inasmuch as it does not attach to the property, it does not pass to the purchaser upon the sale of it.

This doctrine is clearly sustained in Wilson v. Hill, 3 Mot. 68. Shaw, 0. J., says : “An insurance of buildings against loss by fire, although in popular language it may be called an insurance of the estate, is, in effect, a contract of indemnity with an owner, or other person having an interest in the preservation of the buildings, and mortgagee, tenant, or otherwise, to indemnify him against any loss which he may sustain in case they are destroyed, or damaged by fire. If, therefore, the insured has wholly parted with his interest before they are burned, and they are afterward burned, the underwriter incurs no obligation to pay anybody.”

Again, in Powels v. Innis, 11 M. & W. 13, Lord Abinger, C. B., says: “It is a contract of indemnity only, .and nobody can recover in respect of the loss who is not really interested. The policy is 'but a chose in action, and can not pass merely by the assignment of the ship.”

But the precise question involved in this first position of the plaintiff in error has been settled by the highest authority. *In the case of the Columbia Ins. Co. of Alexandria v. Lawrence, 10 Pet. 512, Mr. Justice Story says: “ We know of no principle of law or of equity, by which a mortgagee has a right to claim .the benefit of a pplicy underwritten for the mortgagor, on the mortgaged property, in case of a loss by fire. It is not attached, or an incident to his mortgage. It is strictly a personal contract for the benefit of the mortgagor, to which the mortgagee has no more title than any other creditor.”

The same principles were affirmed in the case of Carpenter v. The Providence Washington Insurance Co., 16 Pet. 503. In this case it is said: “ Policies of insurance against fire are not deemed in this nature incident to the property insured; but they are mere special agreements with the persons insuring against such loss or damage as they may sustain, and not the loss or damage that any other person having an interest as grantee, or mortgagee, or creditor, or otherwise, may sustain by reason of the subsequent destruc-, tion thereof by fire.”

Other cases might be cited to the same purpose, but I deem it unnecessary to pursue this question further. Is there anything in this policy to take this case out of the general rule?

If is well settled at the present day, that an insurable interest need not amount to a right of property, or of possession. Whenever a legal connection can be shown to exist between injury to the thing insured, and the loss to the party insuring, it will suffice, or as stated by Judge Story in Hancox v. The Fishing Insurance Co., 3 Sumner, 132 : The truth is, that an insurable interest is sui generis and peculiar in its texture and "operation. It sometimes exists where there is not any present property, or jus in re, or jus ad rem. . Inchoate rights founded on subsisting titles, unless prohibited by the policy of the law, are insurable ; as, for example, freight, respondentia and bottomry.” And again, by Lord Eldon, in Lucena v. Crawford, 5 Bos. & Pul. 294: “It is a right in the property,'or a right derivable out of some contract about the property, which, in either case, may be lost upon some contingency affecting the possession or.enjoyment of the property.” *Henoe it has been long settled.that both mortgagor and mortgagee have insurable interests—the mortgagee to the amount of his debt, and the mortgagor to the value of the property, since he would remain personally liable for the debt upon the destruction of the mortgaged property. It can not be doubted that the terms of this policy would have covered the interest of any person owning any part of the property at the time the insurance was effected, and who might therefore be supposed to be in contemplation of the contract. But the policy can not be said to “concern” those having insurable interest even, not amounting to a legal interest or ownership in the property, without violating the well-settled rules upon that subject. The plaintiff in error relies upon the case of Rogers v. The Howard Insurance Co., 6 Paige’s Ch. 583, as in point to sustain his position. In that case it was held that where an insurance was effected upon a boat for the benefit, and on account of whomsover it might concern at the time of loss, if any should occur, that a mortgagee of the interest of one who was an owner at the time of the insurance, and for whose benefit the policy was underwritten, had a right to the mortgagor’s portion of the insurance money, to the extent of the debt secured by the mortgage. A careful examination of this case develops two important points of difference between it and the one under consideration, which entirely destroy its value as an authority. In the first place, the policy in that case expressly provided for those concerned in the property at the time of the loss, thereby contemplating and authorizing a change of ownership in the property, ■without affecting the validity of the policy.

In this case, no such liberty is given or change contemplated, but, on the contrary, it is confined expressly to those concerned at the time the insurance is effected. A few extracts from the opinion of the chancellor will show the ground upon which the decision was placed. He says:

“ The underwiters contemplated that a change of ownership of the boat might take place during the continuance of ^the risk, and intended to insure whoever might bo the owners from time to time, so that those who should be interested as such owners at the time when any loss should occur, should have the benefit of the policies;” and again, he says: “ It was unquestionably competent for the underwriters to agree to insure whoever might be the owners of the boat at the time a loss thereof should occur; so as to protect the rights of those who might succeed to the interests of the parties originally insured.” Having thus settled that a fair construction of the contract would make it inure to the benefit of whoever might be owner at the time of the loss, he proceeds to make out the mortgagee an owner at that time, as follows :

“ The mortgage having become forfeited by the failure to perform the condition, the legal title to one-fourth of the steamboat was in Stow (the mortgagee), as the owner thereof, at the time of the loss.” The case is an authority to show that nothing short of ownership and a legal title will answer the purpose, or come within the operation of the claim relied upon. There can be nothing plainer than that no such legal title or ownership existed in the plaintiff in error, either at the time the insurance was effected, or at the time of the loss. The mortgage was not forfeited, but had months yet to run after cither event, and even after the money was received. No reliance is placed upion the fact that Stilwell consented that McDonald should receive the money upon the mortgage. It is very clear that upon the death of Black, all power given to Stilwell was revoked, and his acts are consequently entirely ineffectual to bind his administrator. We think the position of the plaintiff in error, that he had a right to receive the insurance money by virtue of his mortgage, can not be sustained.

His next point is, that he had a right to set off his advances made for Black, at the time the boat was pmrchased, against this money received after his death. No such question is made by the facts. Neither the hill of exceptions, or any paper referred to in it, contains any such evidence. But if it did, we do not see how the proposition could be sustained. If ^McDonald advanced money for Black, Black became his debtor for the amount. If money had come to the hands of McDonald before the death of Black, the right of set-off might have existed. The moment Black died, all his creditors had an equal right to a pro rata dividend of his property, upon which no liens existed; and it would be entirely inadmissible to hold that one creditor could got property into his hands belonging to the estate, and thus indirectly by an offset obtain the full payment of his debts, while others might receive but a part, or nothing at all. No right of offset existed in this case at the death of Black, and none could be acquired afterward by a seizure upon the assets of the estate.

The next ground is, that McDonald was entitled to offset one-third of $461, which he claimed to have paid after he received the insurance money, on debts owing by the boat. This is claimed upon the ground that Black’s interest in the boat was subject to the payment of one-third of this sum, and that an account between part-owners, is to be taken upon the principle of first discharging all debts and liabilities before anything belongs to the individual owners. In short, that there is no difference in this particular between partners and part-owners. I will give a moment’s attention to the general doctrine, and then to its application in this case.

For reasons already given, if these debts only existed against Black personally, no right of offset could be recognized. They must stand upon the same ground as all his other indebtedness. If they were a lien upon the boat, the boat being lost, it would seem to be quite as difficult to transfer the lien from the boat to the insurance money, as it would the lien of a mortgage, which we have seen can not bo done. But it is far from being clear that any such lien for advances between part-owners ever exists. In the first place, it is settled that even a majority of the owners of a ship can not incur even necessary expenses, so as to charge the minority, without their consent; and the reason, as stated by Judge Story (Story on Part. 591, sec. 422), is, “That no one part-owner has a right to compel ^another, against his will, to incur any burden or expense, even although necessary for the preservation oí the common property, but it should be left to his own froo choice. For otherwise, in case one part-owner were poor, it might operate as a grievous evil, and compel him to sell his share, by a sort of forced sale.” But suppose all consent; then it is clear that all are liable in solida for the unpaid debts, and each is bound to contribute his share of all expenditures. “But,” says the same author, “ the’question may arise whether this is a mere personal charge, or whether the respective part-owners have also a lien on the ship itself, for the expenditures or charge made by them, which lion is capable of being enforced against the ship itself, in' cases of insolvency, death, or bankruptcy of a particular part-owner, or any other failure on his part to discharge his own share thereof.”

Upon this question, thus stated by the learned authority, the most eminent judges in England and America have expressed different opinions. Lord Hardwick, in the case of Doddington v. Hallet, 1 Veser, Sen. 497, held that part-owners making such advances' would have such lien—while Lord Eldon, in Ex parte Young, 2 Ves. & Beam. 242, and Ex parte Harrison, 2 Rose, 76, on great consideration, overruled the decision of Lord Hardwick, and maintained that there was no lien in such cases by the part-owners upon the shares of each other. In the last case cited, it was hold that the owners of a ship were not interested in it as joint tenants, but as tenants in common, and that the bankrupt’s share passes to the creditors under the bankruptcy, without being liable sjmcifically, by way of lien, to the claim of the other part-owners, in respect to their disbursements and liabilities for the ship. So, in Ex parte Gibson, 1 Mont. on Part. 102, note, it was hold that a bankrupt’s interest in the moiety of a vessel, was his separate property, and not hold by his assignees for the purpose of paying the joint creditors of the ship.

The case of Ex parte Parry, 5 Ves. 575, is still more nearly in point. Lord Loughborough there held that when one joint *owner of a ship insured on his own account, and became a bankrupt, while the cargo and proceeds of the voyage were joint property, the produce of the insurance on the ship which was lost, was separate property. The doctrine of these cases was adopted to the fullest extent by Chancellor Kent, in the case of Nicoll v. Mumford, 4 Johns. Ch. 525. In speaking of the decision of Lord Hardwick, before cited, he says: “I dare not, therefore, follow a case which has never had effect, and which has been so authoritatively exploded. The late cases which have been referred to.are in point against the allowance of any partnership claim, or taking an account on the foot of any partnership in the vessel. As to that, they were merely tenants in common, in like manner as if they had owned in common a warehouse or other real property in New York.” This case went to the court of errors 20 Johns. 611, where the decision of the chancellor was reversed by a divided court. On the whole, I am not prepared to say that the better opinion, as well as the weight of authority, may not be in favor of the lien. I think it is. But if the rule was established, and if we could transfer the lien from the boat to the insurance money, still this case could not be brought within it. The only information furnished us by the bill of exceptions upon this point is as follows: “And further (the defendant) proved by Daniel McDonald, a witness examined in behalf of said defendant, that be, the said defendant, had, since the receipt of said insurance money by him, paid debts of said steamboat, amounting to the sum of $161.” Now, all the cases agree that the rule can only “ apply to the case of expenditures, advances, and debts, incurred on account of the ship by the part-owners, merely in their character as such, as, for example, for repairs, or for outfits for a voyage, or by discharging existing liens thereon.” Story on Part. 621, sec. 412.

How can we say that these debts were contracted after Black became a part-owner of the boat, or that he was ever liable to pay them; or, if contracted after his interest was acquired, that ho consented to it; for without such consent we *have seen that he would not be liable. Nor is there any evidence whatever furnished, that the debts were of a character to constitute a lien upon the boat.

We can not presume in favor of the plaintiff upon either of these points. The judgment must be shown to be erroneous, or we can not interfere with it. The law binds us to make all presumption in its favor.

Wo find nothing erroneous in the judgment of the court of common pleas, and it is therefore affirmed.


author: Caldwell, J.

text:
    The Washington Mutual Insurance Company v. George M. Reed and Wilson N. Brown.
    Injury to a flat-boat by the waves raised'by a steamboat, is one of the perils insured against in any ordinary policy of insurance, although the steam, boat was an ordinary steamboat, and the swell raised by her an ordinary one.
    The insuror does not insure against certain loss, such as must inevitably happen to all boats, as wear and tear, and the like; but insures against accidents such as may, or are likely to happen.
    The question whether the external force that produced the injury was great or'small, may be important as an item of evidence, in determining whether the vessel was seaworthy or not; but if the force causing the injury fall within the class of perils insured against, if the vessel be seaworthy, it matters not whether it be great or small, the insurer will be liable.
    Error to the Supreme Court of Hamilton county.
    The original action was assumpsit, in the commercial court of Cincinnati. Beed and Brown, the plaintiffs below, declared specially, on a policy of insurance effected by the defendant below, the insurance company, on 750 barrels of whisky, to be shipped in a No. 1 flat-boat, from Lawrenceburg, Indiana, to New Orleans.
    The declaration avers that while the policy was in force, said boat, “by a peril of the river, grounded, and became and was fast upon a bar . in the bed . of the river, whereby, and by reason *of the beating of the waves against said flat-boat, the same sprung a leak, whereby . . the said 750 barrels of whisky on board said boat, the property of plaintiffs, became and were wholly lost.”
    The declaration avers notice to defendant, demand and refusal of payment, etc. The declaration also contained the common counts. Plea, general issue.
    On the trial in the court below, the plaintiffs gave in evidence the policy of insurance declared on ; proved that they owned the whisky, and its delivery on board the boat June 26, 1817. The bill of exceptions taken on trial then states : “ The plaintiffs also gave in evidence the depositions of John F. Oreakbaum (and others by name), and also the papers and documents attached to the said depositions, including the statement of general average made by A. Brother.” The bill then states that “ the defendant objected to the paper marked ‘No. 1 General Average’ as not competent evidence.” The objection was overruled, and exception taken.
    The depositions of Creakbaum (and other persons named in the bill) are copied in the record of this case sent up with the writ of error.
    Creakbaum’s deposition proves that the flat-boat left Lawf-enceburg for New Orleans, laden with the whisky insured, at the proper time, covered by the policy ; that the boat and cargo were in good condition ; that on the voyage the flat-boat met the steamboat John Dronnan, at the foot of Longberry bar. “In going out of the deep water on the shoal water, the John Dren nan caused a heavy swell. When wo wont into those shoals the boat shook considerably, and the John Drennan came so near that I could have jumped aboard of her. . . Alter we struck the swells we struck them very fair with our bow, so as not to strain the boat; and when the midship of the boat came onto the heavy swells the flat-boat cracked—made a noise like something breaking. I started a man to each pump, but they found no water. I run on, then, some twenty minutes ; tried the pumps, and found the water flush; . . examined the boat; *found the water running in about midship: found the water run in at the splice of the gunwales. The flat-boat met the steamboat just after dark. Wo run on until eleven o’clock at night, and struck ; then had eighteen inches water on the false floor.” Finally the flat-boat was landed at Louisville, with nearly two feet of water on the false floor. The injury to the cargo, and loss, wore proved by the depositions. The parties in the court below having submitted their evidence, the jury returned a verdict for the defendant below, and judgment was entered. During the trial the plaintiffs excepted to the charge of the court to the jury, and submitted a motion 'for a new trial, which was overruled.
    The cause was removed to the Supreme Court of Hamilton county, and the judgment was reversed for error in the charge of the court below.
    This is a writ of error to reverse the judgment of the Supreme Court of Hamilton county.
    The charge of the court below to the jury, claimed to be correct by plaintiff in error, and erroneous by defendants in error, is stated in the opinion of the court, with the other facts necessary to understand the decision.

      The policy of insurance, as far as material to a correct understanding of the decision of this court, is as follows:
    “ The Washington Mutual Insurance Company of Cincinnati, by this policy, do cause to bo insured, lost or not lost, Wilson N. Brown, in the sum of $82.50, on 750 barrels whisky, on a No. 1 flat-boat, “Yorktown, No. 1,” from Lawrcnceburg, Indiana, to Now Orleans, in charge of Mr. Creak.baum, pilot, with the privilege of lying at Freeport, or Lafayette, thirty days (but no coasting privilege), and twelve days at Now Orleans, being for account of whom it may concern, and in case of loss payable to Joseph Leech & Co., . . . whereof-is master for tho present voyage, or whoever else may go for master, beginning the adventure upon said property from and after tho lading thereof on board said boat, and continuinguntil safely landed at theportof destination. . . . *“ Touching the perils which the said insurance company are content to bear, and take npon themselves in the promises, they are of the seas, rivers, fires, jettisons, enemies, pirates, and overpowering thieves (but not other thieves). Provided, that the insurers shall not be liable except in cases of general average for loss or damage on said property, unless it amounts to five per cent, on the whole sum at risk, etc. . . .
    “ And it is agreed that the insurers shall not bo liable for damage to goods by wet or dampness, or by being spotted or discolored, moldy or rusty, unless the same be directly caused by some disaster of the vessel, and proof thereof furnished.” .... etc., dated July 5, 1847. ■
    Coeein & Mitchell, for plaintiff in error:
    I. It will be perceived that the record in this case does not contain one word of the testimony which was offered upon the subject of the cause of the loss. The depositions on file are not referred to in such a way as to make them part of the bill of exceptions.
    Whether the plaintiffs offered any, and if any, what evidence, tending to proye the issue, does not appear. There is nothing to show the relevancy of any instructions on the subject of swells in tho river produced by steamboats; and it is clear that this court will not reverse the judgments of inferior courts for errors as to abstract questions of law.
    To determine whether a court has given erroneous instructions, the evidence upon the point must be set out in the bill of exceptions. Gale v. Pearson, 6 Miss. 253; Hamilton v. Moore, 4 Watts & S. 570 ; Cawthorn v. Muldron, 8 Miss. 617; Mason v. Campbell, 2 Pike, 506 ; Trott v. West, 10 Yerg. 499; Wilkinson v. Gilmore, 2 Humph. 140; Ib. 494; Samuel v. Withers, 9 Miss. 166; Frazer v. Yeatman, 10 Miss. 501.
    The Supremo Court will not reverse the judgment, unless the bill,oi'exceptions shows that the error complained of was *material. Stephens v. State, 14 Ohio, 386 ; Watson v. Brown, 14 Ohio, 473.
    And the facts must show, affirmatively, the error complained of. Coil v. Willis, 18 Ohio, 28; Wagers v. Dickey, 17 Ohio, 440; Cressenger v. Lessee of Welch, 15 Ohio, 156 ; 16 Ohio, 518.
    And where a bill of exceptions refers to certain instruments of writing, as being marked with certain letters of the alphabet, but the writings themselves are not incorporated into the bill of exceptions, the court will not notice them, even though similar instruments are inserted in the record. Pickett v. Doe, 5 Smedes & M. 470 ; Hicks v. Pearson, 19 Ohio, 446.
    II. We claim that the commercial court did not err in the-charge given. .3 Kent, 300; Paddock v. Franklin Ins. Co., 11 Pick. 235 ; 2 Sumn. 202, 571; 1 Phil. on Ins. 625 ; Barnwell v. Church, 1 Caine, 234; 2 Johns. 127 ; 8 Pet. 557; 2 Johns. 128, 129.
    The assured assumes the common and ordinary perils to which vessels are necessarily exposed in the voyage insured; hence he warrants to the underwriter that the vessel is every way fitted to overcome these perils. Then comes the underwriter and says, that being so, I will underwrite against the extraordinary perils.
    By the implied warranty of seaworthiness, “ is meant that she shall be in a fit state, as to repairs, and in all other respects, to encounter the ordinary perils of the voyage insured 1 Arn. on Ins. 652; Parke, B., in Dixon v. Sadler, 5 M. & W. 414.
    It is sufficient, on a question of seaworthiness, if the vessel was fit to perform the voyage insured as to ordinary perils; the underwriters are bound as to extraordinary perils. Watson v. Ins. Co. N. A., 2 Wash. C. C. 480.
    III. It is, perhaps, unnecessary, but we advert to one or two other points:
    1. The charge of the court upon the question of seaworthiness was correct. 2 Greenl. on Ev. see. 500; 3 Kent, *205, n.; 1 Johns. Cases, 304 ; 2 Ib. 231, and note; 3 Mass. 485; 1 Arn. on Ins. 652, 653; Park, 8 ed. 568.

      2. If the vessel was not seaworthy, the plaintiffs below claimed, that they should have had a verdict for the premium.
    The insurance was upon the cargo “ from the time of loading,” and the policy attached to the cargo as soon as it was on board. A vessel may have a latent defect, yet if the cargo is put on board, and tho policy is on the cargo from the time of lading, the policy •attaches, and there shall be no return of premium, though the unseaworthiness defeat the action for a loss subsequent to the sailing of the vessel. Taylor v. Sewell, 3 Mass. 331, 343; Mutual Ins. Co. v. Clapp, 11 Pick. 56, 64, 65. See also 1 Phil. 448; 2 Phil. 526, 527, 538 ; 8 Johns. 1; 3 Cranch, 357; Cond. U. S. 561-565.
    Even if the policy did not attach, tho court would not reverse a judgment because the jury did not give tho plaintiffs a verdict for the return of the premium where tho plaintiffs did not ask for such a verdict. Pcnnoman v. Tucker, 11 Mass. 66 ; Penson v. Lee, 2 B. & P. 330; Clark v. Mutual Ins. Co., 2 W & M. 472, 494.
    Fox & French, for defendants in error :
    An important question in tho cause arises out of the charge of the court, in the following words, given at the request of defendant below:
    “ That the defendant was not liable for losses arising from the common and ordinary perils, to which boats are necessarily exposed, in navigating to New Orleans ; and that if the jury were of opinion that the loss in this case arose from an ordinary swell in the river, produced by the passage of an ordinary steamboat by the flat-boat, while on her course in the river, then it was not a loss by a peril within the policy.”
    This charge can not be sustained. The substance of tho charge is, that if the loss was occasioned by an ordinary swell of an ordinary steamboat, no recovery could be had.
    ^Suppose an ordinary steamboat comes so near to a flatboat that the swell she ordinarily creates has the effect to sink the boat, is tho owner of the flat-boat insured not entitled to recover in such a case? If not, then the right to recover does not depend upon the contract or policy, but depends altogether upon the question, whether an ordinary steamboat produces an ordinary swell ■only, without reference to tho question whether that ordinary swell was produced near to or at a distance from the flat-boat.
    Again, the charge is erroneous on another ground. It assumes that an insurance company is not liable for losses arising from the common and ordinary perils to which, flat-boats are necessarily exposed in navigating to Now Orleans. This strikes a death-blow to all policies of insurance.
    But it was claimed that because the boat was injured by the wave of the Drennan, therefore she, the flat-boat, could not have been seaworthy. There was no evidence offered by the defendants to prove that the vessel was not seaworthy.
    When a boat meets with a disaster that is apparently sufficient to produce the injury complained of, .we deny that the jui’y have a right to draw the conclusion in the absence of all other testimony, that the loss was occasioned by unseaworthinoss, instead of being the result of the resistance met with. 1 Marsh. on Ins. 465, a; 4 Mason, 442.
    Again, the loss was occasioned by a springing of a leak, caused by the breaking of the gunwales. We suppose this, in analogy to the springing of a leak at sea, even without any apparent cause, is a peril of the river. Patrick v. Hallet & Brown, 1 Johns. 241 ; Talcot v. Commercial Ins. Co. 2 Johns. 127; 2 Johns. 467; 1 Binn. 600; 1 Johns. 248; 2 Sumn. 197; 2 Wash. C. C. 480; 1 Condy’s Marshall, 165 ; 1 Johns. 241; 2 Johns. 129, 467; 1 Phil. on Ins. 635, 315, 312; 4 Mason, 442 ; 6 Cow. 270.
    It is universally admitted, that if the policy never attached) the insured has a right to a return of premium, and such ought to have been the verdict in this case. But the judge precluded *the verdict from being so rendered, because he charged that if the boat was unseaworthy, the jury must render a verdict for the defendant. This was clearly erroneous. 2 Bos. & Pul. 333; 2 Woodb. & Minot, 494, 495 ; 4 Whart. 67; 4 Mason, 442; 13 Mees. & Welsb. 392; 1 Phil. on Ins. 326; 1 Caine, 302.
   Caldwell, J.

This is a writ of error to the Supreme Court of Hamilton county. The error complained of is that the Supreme Court erred in reversing a judgment of the commercial court of Cincinnati, rendered in this cause, tried in that court, in which Heed and Brown were plaintiffs, and the insurance company was defendant. Th.e suit was brought by Reed and Brown, on a policy of insurance, against the company, for damages to a flat-boat load of whisky, insured at and from Lawrenceburg, Indiana, to New Orleans, by river. The jury found a verdict for defendant below (the insurance company) on which judgment was entered. E'eed and Brown prosecuted a writ of error to the Supreme Court. The Supremo Court reversed the judgment of the commercial court, on the following ground, as stated in the record of reversal: “Because the court below, at the request of the defendants, charged the jury that if they were of the opinion, that the loss declared on by the plaintiff arose from an ordinary swell in the river, produced by the passage of an ordinary steamboat, by the flat-boat, while on her course in the river, then it was not a loss by a peril within the policy, and the plaintiff could not recover, whereas the court ought not so to have charged.” It is said, on the part of the plaintiff in error, that the Supreme Court erred in reversing the judgment of the common pleas: 1. Because the bill of exceptions did not show that the charge of the commercial court was material in the trial of the cause ; *and in the second place, if material, the charge was good law. In the first place, then, does the bill of exceptions show that the charge was material upon the questions in controv'ersy between the parties? The bill of exceptions refers to the depositions of certain persons, by name, as being read in evidence; in terms those depositions are not made part of the bill of exceptions, nor does it refer to them by letter, number, or other term of designation. The depositions, however, are made a part of the record in the case; are all certified up by the clerk—the evidence appears from the record to have been before the Supreme Court without any objection. We find, then, these depositions certified -up with the record, agreeing with'the description given of them in the bill of exceptions, and are bound to consider them as the same there referred to, and as being made a part of the record ; if they are not properly made a part of the record, certified up, the plaintiffs in error should have had the record corrected in the Supreme Court. If, then, we take this evidence, the materiality of the charge becomes clearly manifest. But the charge was asked by the counsel for the plaintiff in error ; and in the absence of testimony going to show the materiality of the charge asked by them, we would suppose that it would not be treating the opinion and conduct of counsel with too much respect, to presume that what they asked was material in the ease, and therefore proper to be asked, when that presumption could not injuriously affect the interest of the other party.

Besides, the charge given was directly in reference to the contract of insurance; it was a definition of the legal rights and liabilities of the parties under the policy of insurance-—a matter that could scarcely fail to bo material in the matter in controversy.

We think, therefore, we are bound to consider the charge given by the commercial court as a matter material for the consideration of the jury.

This leads us to the next and main question in the case, whether the charge of the commercial court was law. The ^charge has been substantially given above. It was, that the insurance company was not liable for the losses arising from the common and ordinary perils to which boats are necessarily exposed in navigating to New Orleans, and that if the jury were of the opinion that the loss in this case arose from an ordinary swell in the river, produced by-the passage of an ordinary steamboat, by the fiat-boat, while in her course in the river, then it was not a loss by á peril within the policy, and the plaintiff could not recover. In 1 Phillips on Insurance, 635, it is said: “Under perils of the sea, which constitute a part of the risks in almost every marine policy, are comprehended those of the winds, waves, lightning, rocks, shoals, running foul of other vessels, and, in general, all causes of loss and damage to the property insured arising from the elements, and inevitable accidents, other than those of capture and detentions.” In this case, it appears from the evidence that at the time the flat-boat sprung the leak, the steamboat John Drennan waa passing her, so close that a person could have jumped from one boat to the other; that the steamboat John Drennan, in passing out of the deep into the shoal water, made a very heavy swell ; and that when the flat-boat struck the swell, about midship, the boat cracked, as if something was breaking; that in a short time the water was coming into the boat faster than it could be pumped out, and that on examination it was found that the splicing of the gunwales had given way, etc.

Now, injury arising from the action of the waves is one of the perils insured against, and we do not see, in reason, the difference between a wave raised by the wind and one raised by a steamboat. Nor have we been able to ..find that any such distinction has ever been held to exist. Nor do we think that any such discrimination as appears to bo presupposed by tho terms “ ordinary swells ” and “ ordinary steamboats ” exists. Whether the gale was a severe one, or whether it was moderate; whether it produced heavy swells, or only those that were moderately so, is not important in determining whether the insurer is liable or not; it is only necessary, to fix his liability, *that the waves should have caused the injury. Whether the steamboat was very large, or only ordinary, whether the swell was extraordinary or not, is not the question ; but the question is, did the swell cause the damage to the boat? We see no more reason in making the liability of the insurance company depend on whether the boat was an ordinary one, and the swell an ordinary one, or whether they were both extraordinary, than there would be in making its liability depend on whether the snag against which the boat run was an ordinary or extraordinary one. Now, if the steamboat had run against this boat, and run her under, there is no question but such collision would have been a peril within the policy; and wo are unable to see any difference, in principle, between running a boat under by directly striking her yntk another boat, or by running so close to her as to cause tho waves to sink or break her. The boat causing the injury would bo equally liable in the one case as in tho other, and so would the insurance company.

But it is said that the peril arising from the waves of steamboats is one of the ordinary perils to which ñat-boats are subjected, and when it is not of an extraordinary character, it is not one of the perils insured against. The time has been, within the recollection of many, when danger to a flat-boat, from the waves of a steamboat, on our waters, would have been a rare occurrence— when it would have been an extraordinary peril; but we do not suppose that the fact that the number of steamboats has so increased that it has become an ordinary peril, has altered the law of insurance.

The flat-boat, although not so highly appreciated as a means of transportation as formerly, has lost none of her legal rights; they must still be extended to her, if for no other reason, for the good she has done. Counsel for plaintiff in error have cited us to a number of authorities, in which it is said that the insurers are not liable for ordinary perils, but only for such as are of an extraordinary kind. I have been able to find no specific definition of what perils are to be considered ordinary and what extraordinary, in the sense in which these terms are used in this connection. The term ordinary peril,” is not used as of ^similar meaning with common or frequent peril, or peril likely to be encountered ; nor does it have any relation, so far as I have been able to discover, to how great or how small the force may be that is brought to bear, or is encountered. The term, I think, is used rather in contradistinction to accident. The insurer does not become liable for inherent defects in the thing insured; he does not insure against wear and tear—such things as all vessels must necessarily be subjected to; does not insure against certain loss, but insures against accidents.

The question how great the force was that produced the injury, may be an important item of evidence, going to show seaworthiness or the reverse, or the like; but if the force produces the injury on a seaworthy vessel, the insurer is liable, if the peril belong to the class insured against, although such force may have been ever so small. The case that gives the most color to the distinction that plaintiff’s counsel have drawn between ordinary and extraordinary perils, is the case of Hazard’s Adm’r v. The New England Insurance Company, 8 Pet. 557. In that case the court say, that the policy does not cover ordinary perils, but extraordinary ones, and yet we think it falls far short of sustaining their position. In that case, the judge, on the circuit, had charged “ that if the jury should find, that in the Pacific ocean, worms ordinarily assail and enter the bottom of vessels, then the loss of a vessel destroyed by worms would not be a loss within the policy.” The Supreme Court sustained this charge. They based their decisions principally on the case of Rohl v. Parr, 1 Espinasse. Judge McLean, however, remarks in delivering the opinion of the court: “ If worms ordinarily perforate every vessel which sails in a certain sea, is not a risk of injury from them as common to every vessel which sails on that sea as the ordinary wear and decay of a vessel on other seas? The progress of the injury may be far more rapid in the one case than in the other; but do they not both arise from causes peculiar to the different seas, and which affect, in the same way, all vessels that enter into them ??? This case, I think, clearly keeps up, *and is based

on, the distinction between injuries that must necessarily occur, and accidents that may or are likely to occur. If all vessels that sail in the Pacific ocean must necessarily be perforated with worms, it could not be an accident that the particular vessel in question was perforated by them.

We think the commercial court erred in their charge to the jury, and that the Supreme Court decided correctly in reversing their judgment.

The judgment of the Supremo Court will therefore be affirmed.

       See Hicks v. Pierson, 19 Ohio, 426; and see Bank of Virginia v. Bank of Chillicothe, 16 Ohio, 170; Acheson v. Sutliff, 18 Ohio, 122; and as to bills of exceptions generally, see Wilcox’s Dig. 44, and Snp. 16, and Coil v. Willis, 18 Ohio, 28; Bascom v. Parish, 18 Ohio, 268.