text:
    Joseph Neville vs. The Merchants’ and Manufacturers’ Mutual Insurance Co. of Cincinnati.
    The complainant had an a open policy/' issued by the defendant; which caused the complainant to be insured in such sums, and on property from such places, and on board of such vessels as should be mutually agreed upon between the parties, and indorsed thereon. While the policy was in existence, negotiations were had for the insurance of 10,987 bushels of corn, on fiat boats Eagle and Clinton ; and on Satur- , day, the 2d of January, 184-7, the plaintiff receivedfrom the Secretary of the defendant, the following: 11 We cannot understand how 10,987 bushels of corn should cost $5000, when the market price is but 21 cents. The market price and five per cent, is the rule, and we do not feel justified in deviating from it. It may stand insured until Monday, when we shall be glad to see you on the subject." On Sunday, the boats were snagged in the Ohio river, and the cargos lost. Held, that the defendant was liable to pay for the value of the corn.
    This is a Bill in Chancery, reserved in Hamilton County.
    The Bill in this cause, which was filed on the first day of February, 1847, in the Superior Court of Cincinnati, alleges, that, on the 25th day of July, 1846, the defendants issued to the complainant a policy of insurance, called an “ open policy,” which caused the complainant to be insured in such sums, and on property from such places, and on board of such vessels as should be mutually agreed upon between the parties, and indorsed thereon ; that this policy remained in the office of the defendants, until the twenty-fifth day of January, 1847 ; that at different times, subsequent to the date of the policy, the defendants caused the complainant to be insured, in different sums and on different quantities and descriptions of merchandize; and that the risks, so taken, were always indorsed on the policy, upon the written request of the complainant, specifying the nature and amount of the risk proposed, the premiums being charged to the complainant.
    The Bill then further alleges, that, on the twenty-ninth day of December, 1846, the complainant made a written proposition for insurance, as follows, viz :

      “ Please effect insurance * * * on interest as may appear in two flat boat loads of Indian corn, now loading at the of Smith street, in-charge of captain Hamilton, hence to Orleans; supposed quantity about 9000 bushels; declaration of quantity to be made to-morrow ; the policy to cover at least $ 5000, and to state loss, if any, * * * payable to Richardson and Watson, New York.”
    To'this proposition the complainant received on the next day the following reply, signed by the secretary of the defendants :
    "The risk on the corn per flat boats, if the boats are of the right class and size, will be five per cent. The premium on flour per No.-1 boats is If per cent. We must be furnished with a survey of the flat boats by captain Pierce, before we can decide upon the risk.”
    The Bill then avers that the complainant procured from captain Pierce surveys of the flat boats : and then, on the first day of January, 1847, more particularly to specify the risk, which he wished to be taken by the defendants, and indorsed on the policy, delivered to the secretary of the defendants the following, statement in writing:

      “ I have shipped on board the two flat boats, Eagle and Clinton, now lying at the foot of Smith street, 4962 sacks, containing 10,987 bushels of corn, which you will please insure, hence to New Orleans, including advances on boats, &c., at $6000; loss, if any, payable to Richardson and Watson, New York. The boats are in charge of Capt. Edward Hamilton ; and-surveys to be handed in to-morrow morning.”
    It is then alleged, that the complainant called at the office of the defendants, on the next day, the second of January, 1847, and handed the surveys of the flat boats to the president, and informed him that the boats were expected to leave on the evening of that day ; that it was agreed, in a conversation between the complainant and the secretary of the defendants, that the premium for the “ risk aforesaid,” should be four per cent, on the value of the property; that the complainant left the office, confidently expecting that the risk would be taken and indorsed on the policy ; but that, during the same morning, he from the secretary of the defendants, the following
    “ There appears to be an overvaluation on the corn, per flat boats Eagle and Clinton. Our rule is market value and five per cent. This is always adhered to. Please let me know respecting it.”
    To this note the Bill avers, that the complainant immediately replied as follows:
    “ On your terms, the corn in sacks cost - $5000 And as near as possible, advances on the boats
    to be included in the policy, ... 550
    -$5550.”
    To this statement it is averred that the complainant received on the same day, the following reply from the secretary of the defendants:

      “ We cannot understand how 10,987 bushels of corn should cost $ 5000, when the market price is but 21 cents. The market price and five per cent, is the rule; and we do not feel justified in deviating from it. It may stand insured until Monday, when we shall be glad to see you on the subject.”
    It is then alleged, that to this last note, which was received on the afternoon of the same day, Saturday, January 2, 1847, the complainant immediately replied ás follows:
    “ In reply to your note just received, I have to say that I am prepared to show that the sum insured on the flat boats, Eagle and Clinton, say $5,550, does not exceed your limit, including my advances on the cost of the boats. On the contrary, I am buyer of a few flat boat loads more of such corn, in such packages, at the same price. At about the same, I have one flat boat load from Portsmouth, and expect to load two or three boats more from hence, and your accepting of the insurance of the rest from here, is entirely optional with you.”
    The Bill then proceeds to allege, that the complainant, having the express agreement of the defendants, that the flat boats and their cargoes were insured “ for the sum of $5550,” rested secure; intending on the ensuing Monday to call at the office of the defendants, and satisfy them upon the question of value, which was “ the only question which had not been fully decided and agreed to,” but that, on Sunday, the third day of January, 1847, the flat boats and their cargoes, having that day left Cincinnati, were snagged in the Ohio river and totally lost, of all which the defendants had due notice.
    It is further averred that on Monday, the day after the loss, the defendants refused, when requested by the son of the complainant, to have the risk indorsed on the policy, unless the complainant would proceed to take testimony at once in reference to the loss, which the complainant would not assent to.
    There are, also, allegations, that the boats were properly manned and otherwise seaworthy; that the cargo was of the value of $5000, and the boats worth $550; that the complainant was the owner of both ; that the defendants were informed of the loss, and of the interest of the complainant, and of the value of the property ; and that the defendants have persisted in refusing to indorse the risk on the policy.
    The prayer of the Bill is, that the defendants may be decreed to specifically perform the said agreement, by indorsing the risk upon the policy, and to pay the value of the property ; and for such other and further relief, as equity may require.
    To this Bill the defendants demurred.

      Storer &f Gwynne, for Complainant.
    The defendants resist the prayer of the bill on the ground that no contract to insure the property was ever made by them. The complainant contends that such a contract did exist at the time of the loss, and asks the Court so to decree.
    1. There can be no question; we presume, that when the insurer contracts to take a risk, the obligation to indemnify is perfect, though no policy is issued — that instrument is but evidence of the prior contract, and its absence does not destroy the right to recover on the contract itself — and in every such case, the proper remedy is by Bill in Equity, to compel the execution of the policy, or rather a compliance with the contract, as the circumstances may demand.
    “Should a loss,” says Mr. Duer, (vol. 1, page 66,) “occur before the execution of the policy, where an application to insure has been accepted, a Court of equity would relieve the assured, and on a bill properly framed, instead of confining itself to a specific execution of the agreement to insure, would probably decree the payment of the loss.” See also 2 Phillips on Ins. 583; 4 Cowen 646; Perkins v. Washington Ins. Company, 1 Edward’s Chancery Rep. 64; Callaghan v. JElna Ins. Com., 23 Wendell, 25; Lightfoot v. N. A. Ins. Com.; and the principle fully recognized in 8 Ohio 504, Fleatv. Ohio Ins. Com. And on the same principle, when the contract does not express the intention of the parties, it may be rectified. Henkle v. Royal Ex. A. Co., 1 Ves. senior, 318; Motteux v. London Ass. Co., 1 Atkins, 545. So also 2 Johns. Ch. Cas. 630, Lyman et al. v. United Ins. Co.; 3 Mason, 10, Andrews v. Essex Ins. Co.; 2 Cranch, 441, Graves v. Boston Mar. Ins. Co.; 2 Wash. C. C. R. 5, Bel. Ins. Co. v. Hogan.

      2. It is said, even if a contract was made, there is no proof of loss, or of interest, alleged in the bill. In other words, that no preliminary proof is averred to have been given to the insurer, and therefore the complainants have made no case. In answer to this assertion, we think the statement in the bill is sufficiently broad to cover the objection. The averment is, that the defendants declined to pay the loss, or.to issue a policy, unless the complainants would agree to take testimony at once. It prooceeds further, and charges that they were notified of the loss. Now, it is well settled that if the parties place the objection to their liability on a particular ground, they waive all preliminary proof; and the only reason why such proof is required, is to enable the insurer to judge of the claim of the insured; where such proof is not demanded, it is waved. I Johns. 249, Mclntire v. Brown; 7 do. S06, Johnson v. Col. Ins. Co.; 7 Paige 198; 9 Johns, 195, Vos v. Robinson; Scott v. Eagle Fire Company.

      It is also said that the suit was brought before the sixty days expired, and therefore the bill cannot be sustained. The prayer is to compel the execution of a policy and the contract and if the right existed at all, it commenced with the making of the contract; of course a refusal to execute the policy and deliver it to the insured, would authorize an immediate appli cation to the Chancellor. It comes, too, with, an ill grace from the defendants, who insist that no contract was ever made, to except to the time of filing our bill. We regard neither objection as well taken. 2 Carr v.' Payne, 550, Goldstone et. al. v. Osborn, Burt, et. al.

    3. It is stated, that, should the contract have been made, the insured could not be held unless a policy had been issued, as the defendants could not be bound by any other instrument than that which is contemplated in their act of incorporation. And the case of Cockrell v. Cm. Ins. Co. et. al., 16 Ohio, 148, is referred to. We cannot regard the decision of the Court, there, as effecting our right to recover. No proposition is there asserted that can, as we believe, authorize such an inference to be drawn.
    What is the Policy ? It is but the legal evidence of a contract to insure, and furnishes the ground of an action at law. But suppose the proposition is made in writing to insure, the premium agreed on, and the proposition accepted by the underwriter, can the policy be withheld ? Are these defendants beyond the reach of a Court of equity, and liable only when they choose to issue their policy ?
    In Kohne v. N. A. Ins. Co., 1 Washg. C. C. R. 93, Judge Washington says: “ that in such case, where everything had been agreed on, the contract was perfect without the policy ; and if the policy should have been made out, but not delivered, the insurer could not retain it; they could be compelled to give it to the insured.”
    4. Was there a contract? The parties, for sometime, had an understanding between them as to the mode in which insurance should be effected. An open policy was issued, it was kept in the possession of the insured; the general terms of the ’ risks to be indorsed from time to time upon it, were set forth in the body of the policy. When the complainant wished to insure, he wrote- a note to the defendants, who accepted the proposition at once, on the usual terms, and indorsed the risk upon the policy; or if there was any explanation necessary, they asked it, before the risk was finally taken. This is alleged to have been the course of the parties, each acting in good faith, and in the spirit of mutual accommodation.
    After several indorsements had thus been made, the complainant, on the 29th Dec. 1846, wrote the note No. 1. It contemplated the insurance of distinct articles — Lard and Corn. The defendant’s note No. 2, in reply, states the amount of the premium on the lard, and the risk on the same day is indorsed on the policy without any further act of the insurer. He requested insurance to be effected, without specifying the premium, and it was done, at the same moment the note was received. In this note the premium on the corn was stated, the only reservation was as to the size and class of the flat boats, in which it was loaded. It was also required, that a survey of the boats by Captain Pierce must be furnished before the risks could be decided on. This was on the 30th December. In pursuance of this suggestion from the defendants, the plaintiff procured the next day the surveys, and handed them to the President on the 1st January, 1847, who filed them away in the office of the Company. The boats were loaded, and the defendants were then informed that they would leave the next day for New Orleans, and urged immediate action upon the risk. As the quantity of corn had then been ascertained, the complainant, to carry out more particularly his views, wrote the note No. 3, stating the corn to be contained in 4,962 sacks, and to amount to 10,987 bushels. We regard this as no new proposition, but a continuance of the former one. It differs only in the quantity of the corn. The first proposition contemplates that the declaration of the real quantity was to be after-wards made, but specifics the same risk, and the same boats, the same Captain, and the loss, if any, to be paid to the same persons in New York. In form and substance also, the propositions are identical.
    After the conversation alluded to, the Secretary of the office, well knowing that the boats were waiting for the consummation of this insurance, wrote the note No. 4, asking an explanation merely of the value of the corn ; stating that the market value and 5 per cent, added, was the rule of the Company; that it was always adhered to, and requested information upon the subject. Here there was no refusal of the risk, but a virtual acceptance of the proposition; the value of the property being not fully agreed upon. On the same note thus addressed to the complainant, he replied, and sent the same to the defendants, that on their terms, the corn in sacks cost..........$ 5,000 And as near as possible, advances, &c., paid for boats
    to be included in the policy.......................550
    $5,550
    Here was a particular statement of the property, its cost, and what the complainants wished to be included in the risk. It was all that the terms of the Secretary’s note required, and all that could have been asked. These notes had protracted the matter until the afternoon of Saturday, January 1, 18.47, when note No. 6, was received by the complainants. This note expressed some surprise at the estimated .value of the corn, but took no exception to it, or the additional item for advances on the flat boats It does not decline the risk, but after reiterating the former remark, that the market price and five percent, was the rule, and they did not feel justified in departing from it, proceeded to state that it may stand insured until Monday, when the defendants would be glad to see the complainants on the subject.
    This note was received in the afternoon after business hours. The complainant immediately replied, in note 7, when he reaffirmed the value of the corn to be within the limit of the insurer, and that he was the purchaser of two other boat loads at the same price. He then states, that the acceptance by the 1 Company of the insurance on the rest from Cincinnati was entirely optional with them.
    By the last clause of the note it is evident that complainant regarded the insurance to have been effected on the boats referred to in his proposition. The risk upon the other boats yet to be insured, it would be optional with the defendants to take or not. Here the minds of the parties met. The amount insured was perfectly understood, and the terms of the risk clearly defined. The time fixed was the succeeding Monday, not as limiting the risk, but for settling the market- value of the property, and this would have been done equally well whether the boats had left Cincinnati on their voyage, or had remained at the wharf. The defendants knew that the boats were to leave on Sunday, and that it was too late for the complainant to obtain other insurance. They had already entered risks upon the policy at his request, without requiring his acceptance; and they had the same right to suppose that he would rely upon their assurance, and act accordingly. But he did not notify them, and left no room to doubt of his intention to accept the terms of their notes; and having thus, as he believed1, effected a full insurance upon his property, the complainant permitted it to leave Cincinnati, on the voyage, and while in due course of navigating the river, the boats and their lading were destroyed. So soon as the loss was known, the under-writers were informed of it, and without denying the contract of insurance, placed their defence, if any existed, on other ground. They offered to execute a policy if the insured would take testimony as to the loss at once; and never, until this bill was filed, pretended to the complainant that they would resist the claim for any defect in the contract.
    __ We conclude, therefore, that complainant has made a clear case for relief.
    It certainly is not necessary that the agreement of insurance should be signed by the parties; it may be and often is made by correspondence. All that is required is, that the minds of the parties have met; 1 Duer on Insurance,§ 12. Also (page 109, note 6; ) 1 Pickering, 278, McCullough v. Eagle Company.

    And where an agreement to insure is made, and the subject insured is lost before the policy is executed, the policy, if after-wards issued, is valid, the date of the agreement fixes the time the liability commences; the policy is but evidence. 1 Duer, 112; 3 Adolphus v. Ellis, 103; Mead v. Davidson; 6'Vesey, Jr. 349 ; Paine v. Miller.

    The agreement to insure may be made, and the offer to in- , sure accepted actually or constructively. The silence of the underwriters might justly be held to conclude them. 1 Duer, 67; 4 Wheaton, 228, Eliason v. Henshaw; 10 Pickering, 332, Thayer v. Middlesex Mutual Fire Ins. Co.

    • Wherever it is incumbent upon a party to express his dissent, if he does not agree to a proposition, and he is silent, or whenever his silence is explicable only by the presumption of his assent, his assent is presumed. Story on Contracts, § 379 ; 5 Pickering, 380, Train v. Gold; 1 Metcalf, 93, Hubbard v. Coolidge.

    It is not material in contracts, which of the parties speaks the words, if the other assent, for the agreement or mind of the parties, is the only thing the law respects in contracts. Plow-den, 140, Browning v. Benton ; 1 Greenleaf on Evidence, <§> 197.
    Thus far the law that must control, we suppose, the decision of the case. It is said however by the defendant:
    1. That the subject insured is not agreed upon. We would refer to the evidence. The last note from the defendants was “ that it might stand insured until Monday.” What did they mean unless the property set forth in the propositions l, 3, and 5, in the last of which the complainant expressly includes the subject insured, and to which the reply of the Secretary in note 6 refers?
    2. It is said that the amount insured was not agreed upon.
    We ask to compare the note 3, 5, and 6, and ascertain whether the market value was not always agreed on by the defendants with five per cent, added, and whether the sum by the complainants was not always insisted upon as the then market, value ? If so; the only question to ask is, whether it was or was not the fact ? It was one of proof only ; and had even the insurance been effected at the time, for the specified sum, without reference to the request to call on Monday, the valuation, if fraudulent, or, to use the language of the Books, “highly stimulated,” might have been reduced in the proper forum. 2 Phillips on Ins. 4; and the authorities cited; 1 Marshall on Ins. 290, Condy’s Edition.
    3. As to the objection to the duration of the insurance, the same principle applies. The application was for the voyage, not for a period lesser merely. The statement in note 6 does not limit the insurance as to place; it only refers to the general subject, and requests an interview on Monday to settle the value. On Monday there was an interview between the parties, the loss 'made known, and no objection taken to the value. Here was a construction given to the contract, while the minds of the parties were directed to the subject, and the liability for a large sum' asserted against the defendants; and yet there is '■ no denial of the contract.
    4. As to the consideration or premium to be paid by the insured, to which the defendants refer, and deny that any was agreed on, we would again refer to the conduct of the parties, from the commencement of their business till the time of loss. Nothing was ever said about the premium, but the indorsement was generally made on the policy, so soon as the offer for the risks was presented to the Secretary. And, confiding in the belief that no higher sum would be charged than the fair current rate demanded by other offices, the complainant never referred to the premium in his notes. The Secretary’s note, No. 2, stated five per cent.; there is no other sum known by the correspondence than that, although it is stated in the bill that afterwards four per cent, was agreed on, and this fact is admitted by the demurrer. But the note of the defendants, No. 6, prescribes no specific amount, and we may either prove the one sum or the other, on trial. . The validity of the contract does not depend upon the specific sum to be paid, if is an unusual price demanded for such risk, and it is well understood by the insurer and insured. In every such case, if there is a dispute even as to the amount of premium to be deducted from the loss, it is matter of proof to ascertain it. I Marshall on Insurance, 335.
    5. But it is said, the last offer of the defendants in note 6, was a new proposition. How is it ? The same subject is insured. The answer is to the note, No. 5, and covers the whole of that note; besides it was not an offer; it is a direct consent to the terms of that note, a clear and unequivocal agreement that the property may remain insured, just as it is, until Monday, when the complainant was requested to call upon the defendants upon the subject. The boats were then insured, wherever they might be, and if they had been burned up on Saturday night, or any time before Monday, while lying at the wharf, would there have been a doubt of the liability of the Company to pay the loss ? Would the defendants have resisted the claim? We believe not.
    We affirm this note offered no new terms, it required no new assent to it from the complainant. He had already made his offer, and the note alluded to acceded to it.
    But if there was a new condition, it was accepted. The complainant’s note, No. 7, is a perfect recognition of the insurance as effected, as it expresses in plain terms in its concluding part, that such was the understanding of the insured. Even if no assent had been given, and it should have been legally required, the defendants could not have revoked this offer, after it had been made to complainant and he had acted upon it. 6 Wendell, 104, Mactier’s Adm’r v. Frith; 4 Paige, 17, Brisbane v. Boyd.

    The contract of insurance being one of indemnity, it must be subject to the same rules that control other contracts, in carrying out the intention of the parties, as well as to secure the object for which it was made. It is clear, then, that a risk so muc^ money upon goods, or a vessel, is valid, and it is upon the party insured, in case of loss, to establish by proof the value of the property to be equivalent to the sum named in the policy. . The only difference between such a risk and that where the insurance is upon property valued at a certain sum, is, that in the first case the insured must prove the value; in the latter the policy itself fixes it, subject to the right of the insured to dispute the valuation, should it be fraudulent.
    And in the case now before the Court, there is no difficulty in ascertaining the value of the property, nor, as we think, the intention of the parties.
    The note No. 6 was either an agreement to insure, or it was not. It carried with it the full understanding of the defendants, that it was, else it might operate as a frand upon the complainant, for he so believed it to be, and without hesitation relied upon it. We will not impute any such dishonorable intention to the insurer, but on the contrary, assert that their note was in good faith prepared to protect the insured against all the usual risks of the contemplated voyage, and in like good faith he received it; and upon its validity as a contract to insure his property, he placed that property at peril, and may therefore well seek to be indemnified for his loss.

      Coffin 8f Mitchell, for Defendants.
    It is quite certain that the complainant in this case, is not entitled to a decree for the payment of the loss; for there is no averment of his having made such proof of loss and of interest, as is required by the express terms of the policy, which is annexed as an exhibit to his bill; and, moreover, the policy provides that losses shall be payable sixty days after such proof, while in this case the bill was filed in less than sixty days from the happening of the loss itself.
    As the demurrer must be overruled, however, if the complainant shall appear to be entitled to any portion of the relief prayed for, it will be unnecessary to discuss these, or any similar questions. And we shall direct our attention exclusively to the inquiry, whether any contract of insurance was between these parties.
    That there was neither a policy of insurance, nor an indorsement upon one, which covered the property that is the subject matter of the present controversy, is beyond dispute. But it is claimed that there was an agreement on the part of the defendants, to insure this property, by an indorsement upon the policy which they had previously issued to the complainant. And the only question to be considered, is, whether any such agreement was completed.
    A contract for an indorsement does not vary materially from a contract for a policy. The policy issued by these defendants, required indorsements which should specify all the essential elements of an original contract of insurance. It will be necessary, therefore, to consider whether, in the course of the negotiations between these parties, the assent of both was given to all the various terms which it was necessary to agree upon. And such a discussion must necessarily be of a'most elementary character.
    Insurance is a contract, whereby, for a stipulated consideration, one party undertakes to indemnify the other against certain risks. 1 Phillips on Ins. p. 1.
    Marine Insurance is “ a contract of indemnity, in which the insurer, in consideration of the payment of a certain premium, agrees to make good to the assured, all losses not exceeding a certain amount, that may happen to the subject insured, from the risks enumerated or implied in the policy, during a certain voyage, or period of time. It follows from this definition, that every valid policy must specify — 1. The parties between whom and on whose account the insurance is made. 2. The consideration, or premium paid. 3. The subject insured. 4. The amount insured. 5. The risks insured against. And lastly, 6. The voyage, or period of time, during which the insurance is to continue in force. 1 Duer on Ins. p. 58-9.

      A contract may be made by a correspondence between the part¡es; but, “in such cases, to enable a Court to deduce a con-from the letters of the parties, the evidence of the assent of both, to all the terms proposed, must be clear and unequivocal.” “ The contract is not perfected by the assent of the applicant to the terms offered by the insurers, if that assent be accompanied by any new conditions.” 1 Duer on Ins. p. 67.
    It will be found, upon an analysis of the complainant’s bill, that several essential elements were absent from what he claims to have been a contract of insurance. Every letter which he wrote, was a new proposition. Indeed, so often did he change his application, that it is difficult to ascertain what is the precise contract which he claims to have been concluded. From the allegation that he rested secure, having the express agreement of the defendants, “ that the flat boats and their cargoes were insured for the sum of $ 5550,” we suppose that he claims the contract to have been for the insurance on cargoes and boats jointly valued at $5550; but whether from Saturday until Monday, or from Saturday for the voyage, and at what rate of premium, we are utterly unable to decide. And we can find no time, during the negotiations between the parties, when both had agreed to all the necessary terms of such a contract.
    The case made by the bill,- is not near so strong as the case of The Ocean Ins. Co. v. Carrington, 3 Conn. Rep. p. 357; nor as that of Eliason v. Henshaw, 4 Wheat. Rep. p. 228.
    In the Connecticut case, Carrington wrote to the Company, asking upon what terms they would make an insurance “ on 26 horses and 20 oxen.” The company replied that they would take the risk at 12 per cent., or at ten per cent, with a warranty that the property was safe on a certain day. By the mail of the next day, Carrington replied : “We accept your terms, with a policy filled on 26 horses, valued at $2200, and on 20 oxen, valued at $800and in this letter inclosed the premium note. The Company on the following day forwarded by mail a policy for “ $3000 on stock, &c.,” with this note in the margin, “ 46 head of horses and oxen, valued at $3000.” The Court held that no contract had been made, Each letter had changed the proposal.
    The case in 4 Wheat, p. 228, affords a lucid and forcible illustration of the familiar rule that the minds of the parties must meet. In that case, the plaintiffs in error offered to purchase from the defendant, 300 barrels of flour, to be delivered at Georgetown; and asked an answer by the return of the wagon, by which the letter was dispatched. No answer was sent to Harper’s Ferry, the place to which the wagon was to return; but the offer was accepted by a letter addressed to the plaintiffs at Georgetown, and received by them at that place. The Court held that there had been no contract. “ An acceptance at a different place from that pointed out by the plaintiffs, and forming a part of their proposal, imposed no obligations upon them.” Vide 1 Duer on Ins. p. 114, for an abstract of these cases.
    We proceed to the consideration of the negotiations between these parties, as detailed by the complainant, in reference to several of the terms necessary to be agreed upon in every contract of insurance. And we shall be deceived, if it is not found that there was more than one essential ingredient of every such contract, in regard to which the minds of these parties never met.
    1. As to the subject insured.

    The complainant’s first proposition was for insurance on “ two flat-boat loads of Indian corn,” the supposed quantity of which was 9000 bushels. The precise quantity was to be declared thereafter; but no room was left for the insertion of anything else than the corn itself. What the complainant desired to be insured was the cargo, and it only. This proposition is not claimed to have been accepted. The Secretary of the defendants replied to it, that, before deciding upon the risk, they must be furnished with surveys of the flat-boats.
    The next day the complainant procured the surveys, but instead of undertaking to obtain such an insurance as he had first applied for, requested insurance “ on 4962 sacks, containing 10987 bushels of corn, including advances on boats,” &c. This was an entire change of the proposition. The first was for a policy on cargo only with the amount unascertained; the on cargo and boats, with the quantity of the cargo specified.
    In both of his subsequent notes, the complainant adhered to his second proposal, speaking in his third note of “ advances on boats, to be included in the policy,” and, in the fourth stating his readiness to show that his valuation did not exceed the limits of the defendants, including his “ advances on the cost of the boats.”
    Now, in none of the notes of the Secretary of the Company, is the slightest allusion made to any interest in the flat-boats. The attention of the defendants was all along directed to the over-valuation of the cargo; and they neither said nor wrote anything which would justify the inference that they would accept any risk whatsoever on the boats. The complainant, on the contrary, having withdrawn his first proposition by making a new one of an essentially different character, afterwards constantly insisted that his advances upon the boats should be included in the insurance.
    This question, as to what was the subject matter of the insurance, is one of vital importance. So long as it was unsettled, no contract could be completed. And yet we -are unable to discover, throughout the whole course of these negotiations, that either party abandoned his position in regard to it. The complainant constantly persisted in including his advances in his estimate; while the defendants as' uniformly mentioned nothing but the corn. In the last note of the Secretary, the the one in which he made an offer of insurance until Monday, his language was, ‘ it ’ may stand insured. He had never made allusion to any other subject of insurance than the corn, and had just then been speaking of its overvaluation. To claim, this as a reference to anything else than the corn, would seem to us to be an outrage upon language.
    2. As to the Amount Insured.

    Policies are either valued or open; and a policy may be yalued as to some articles at risk, and open as to others. A valued policy is where the value of the property is agreed and -here the valuation, in the absence of fraud, is binding upon the parties. In an open policy, the value is open to inquiry and proof; and market price is the interest, which the owner can secure by it. 2 Phillips on Ins. pp. 2, 3, 7. 1 Duer. on Ins. p. 97.
    In this case, the parties did not agree upon any valuation, nor even as to whether the indorsement should be open or valued.
    The Bill calls the policy an “ open policy,” but as this is followed by an allegation, supported by the policy itself, which is annexed, that the insurance was to be “ in such sums, &c., as should be agreed upon,” it is probable that the term “ open policy ” is not accurately used; and that the idea intended is, merely, that it was a policy subject to indorsement. The policy was a valued one; though perhaps an indorsement made upon it would have been good, which expressly left the question of value open as to certain articlés.
    During the whole negotiations between these parties, the complainant was insisting upon a valued indorsement, and would have no other, although he changed his mind more than once as to the precise valuation.
    His first proposition was for insurance in not less than §5000. This offer not having been accepted, although as yet there was no controversy as to the amount, he next endeavored to procure a joint valuation of his corn and advances at §6000. And, it having been objected that- there was an overvaluation, he made an entirely new proposal, distinct from both the others, for a valuation at §5550; and adhered to this in his last note, which states his readiness to prove that the sum last named did not exceed the limits of the defendants.
    Here were three entirely different-propositions; and not one of, them was accepted by the Company.
    The first, for insurance in not less than §5000, is not claimed to have been accepted; because the surveys had not been furnished, at the time, when it was replaced by the succeeding one. The second, for §6000, can scarcely be claimed to have been assented to, for, aside from the fact that it was withdrawn by the subsequent proposal of a valuation at a less amount, the bill distinctly alleges the insurance to have been in the sum of §5550. And there is no evidence of the acceptance of the third and last of these valuations by the Company, unless it is to be found in the succeeding note of the Secretary, in which he states his inability to comprehend the correctness of the complainant’s estimate.
    In this last note of the Secretary, there was, it is' true, an offer to permit the corn to stand insured until Monday. But then it should be borne in mind, that, in answer to the previous propositions of the complainant, the Company had stated it as their invariable rule, which they “always adhered to,” and from which they did “ not feel justified in departing,” to limit the amount of such insurances to “ market value and five per cent.” As the complainant, therefore, had all along insisted upon a valued indorsement, for an amount which the defendants deemed above their limits, their offer of insurance until Monday, viewed now simply in regard to the amount of the insurance, was a new proposition, perfectly distinct from any offer of the complainant, and of no force until distinctly and unequivocally accepted by him. So far from assenting to it, the only reply which he made, was, that he was ready to show that his valuation did not exceed the limits of the Company. He never thought of accepting it; but undertook to convince the defendants that his own terms should be acceded to. At a period, not only subsequent to all the correspondence and conversations between the parties, but after the happening of the loss, he distinctly alleged in his Bill, that this question of valuation was one “ which had not been fully decided and agreed to.” And yet the very terms of the policy, on which he sought an indorsement, expressly required the amount of the insurance to be agreed on.
    The position of the parties, then, in reference to the amount of the insurance, seems to us to be this: The complainant wanted the value agreed upon, and wished it to be, at first, $5000, then .$6000, and failing in'«this, lastly $5550. company refused their assent to all these ; and made an offer of insurance at “ market value and five per cent.” It matters not whether this offer was of an open policy, for whatever market value and five per cent, should prove to be, or of a valued policy, whenever the amount of market value and five per cent, should be ascertained and inserted. It was in either case an offer entirely different from all of those of the complainant. The complainant declined to accept the terms of the Company. He would not run the risk, whether market value and five per cent, would amount to the sum which he wished covered by the policy. He insisted upon a policy valued at $5550. The company were not satisfied that this sum would not exceed their limit; and refused to assent to such a valuation. They offered, however, to insure on their own terms until Monday, at which time, if the complainant could satisfy them of the propriety of his valuation, there would be no difficulty in concluding an insurance for the voyage. This new proposal the complainant did not accept; but replied only to insist that the Company ought, upon their own terms, to agree to his valuation. And thus his anxiety for an amount higher than was deemed proper by the company, prevented the completion of any contract between the parties; and the boats were wrecked on Sunday, during the pendency of negotiations.
    3. As to the Time or Duration of the Insurance.

    In this particular the complainant did not at any time depart from his original proposition. His first application was for the voyage “hence to New Orleans.” In the second, he made use of the same language precisely. And in his subsequent notes there was no allusion whatever to the subject.
    The defendants, as we have already seen, never assented to such an insurance. Up to Saturday evening, the parties had been unable to agree. Not only had there been no settlement of the question, as to what should constitute the subject matter of the risk — whether cargo only, or cargo and advances; but there was a decided difference between the parties, on the of valuation, an adjustment of which the complainant intended to procure by calling on the defendants, the next Monday.
    If at any time previous to the date of the last letter of the Secretary, the parties had succeeded in agreeing upon the other terms of the contract, there would have been no difficulty as to time. The silence of the defendants would have been a sufficiently full assent to the proposition of the complainant, and the insurance would have been for the voyage. If any stress is laid, however, upon the expression of the Secretary, in Ms last communication, “ it may stand insured until Monday,” this question of time becomes of vital importance.
    We think there can be no reasonable doubt, that this offer, on the part of the defendants, was entirely distinct, in regard to the duration of the insurance, from any previous proposition. The language of the Secretary will bear no construction, which does not show that the proffered insurance was to terminate on Monday. If we should admit, what we have seen to be untrue, that the offer was to insure, on the complainants own terms, a valuation of $5,550, on corn and advances, it would not touch this question. He desired an insurance upon his valuation for the voyage; while the Secretary, if we should admit, that, by this sentence, he waived his objections to the valuation, could only be claimed to have waived them in reference to an insurance until' Monday. If there, had' been in.this letter an acceptance of such of the terms of the complainant’s offer as had previously been rejected by the defendants, it would still have been an acceptance coupled with a condition, that another important element of that offer should be changed; and, being thus a new offer, would not have been binding upon the Company, until distinctly and unequivocally accepted by the complainant.
    But there is not the slightest evidence of any disposition to accept. Not only was there no assent to the new proposal before the occurrence of the loss; but the bill itself,' framed at a subsequent period, seems to us to be predicated upon an insurance for the voyage, as if this offer of the Secretary was no importance in the matter. The simple truth is, that complainant was annoyed at the objection to his proposed valuation ; and, fully bent on obtaining precisely such an indorsement as he had requested from the Company, never deigned to reply to the new offer of the Secretary. And no contract of any kind was concluded between the parties.
    4. As to the Consideration for the Insurance.

    There was one time, when, if the other details of the contract had been adjusted, the premium would also have been settled. After the second note of the complainant, and before the receipt of the Secretary’s reply, the bill alleges that the parties had a personal interview, at which it was agreed, that the premium should be four per cent, upon the value of the property insured. This, agreement, however, must have been in reference to the previous proposal of the complainant, for insurance to the amount of $6,000, on his corn and advances.
    Immediately after this interview, the complainant was informed of the overvaluation, and changed his proposition by reducing the amount of his valuation to $5,550; and from that time forth, the subject of the premium was never adverted to.
    It is quite true, that, if there had been a settlement of the other terms of the contract, to the satisfaction of both parties, both might have been presumed to have acquiesced in the same premium, which had already been adopted, although adopted for a different insurance. But it can hardly be claimed that the Company assented to this consideration for a new risk, while they were constantly refusing to accept such a risk upon any terms whatsoever. It is not by any means certain that the complainant would have been willing to pay four per cent, for insurance in a less amount than he was desirous of procuring. And the mere silence of the defendants should not be held to conclude them on this subject, when the correspondence between the parties shows, that from the time of the charge of overvaluation until the happening of the accident, they had never sufficiently agreed on the risk, to be ready to decide upon premium.
    any claim of,an insurance from Saturday until Monday, this argument will be, if possible, more conclusively fatal. It cannot certainly be presumed that the complainant, if he had accepted the proposition of the Secretary, would have been willing to pay four per cent, for an insurance of less than two day’s duration, when four per cent, would have been the premium for an insurance for the voyage ; yet" four per cent, was the only premium, which was at any time agreed on. And, if for this short time the complainant was indemnified, it was without any consideration whatever to the Company.
    5. As to the Parties Contracting.

    There is a question whether the defendants were competent to contract in the mode which the bill sets forth. Indeed, under the decision in 16 Ohio Rep. p. 148, it would seem that no such contract would be valid. But we desire to rest this case rather on the other grounds which we have considered, feeling confident, that, if the Company had been free from this disability, the bill would not show the completion of a contract.
    Having thus glanced very briefly at several particulars, which must necessarily be assented to, before the conclusion of any such contract as is claimed in this case to have been made, and as to which we think it evident, that these parties had not succeeded in agreeing, we propose to look for a moment at the whole negotiations which are set forth in the Bill, in the order of their actual occurrence; and to see if at any period a contract was perfected.
    There is no controversy between us up to the time when the conversation took place about the premium. The complainant had previously applied for insurance in not less than $5,000, on corn, and the Secretary had required surveys. The complainant had then procured the surveys, but, before delivering them to the Company, had changed his first proposal to a request for insurance in $6,000 on corn and advance§. At this stage of the negotiations, he called at the office of the Company, and delivered the surveys, and agreed with the Secretary that the premium should be four per cent. “ for the risk aforesaid.” ,. r Did this conclude a contract ? It did not. ■ The very of the agreement, as set out in'the Bill, that the premium should be four per cent. “ upon the value of the property,” and not four per cent, upon the proposed valuation, tends to show that the valuation had not yet been agreed upon ; and, if this is not of itself satisfactory, the fact, that the complainant, in reply to the charge of overvaluation, made immediately afterwards by the Secretary, admitted an overvaluation of $450, and consented to a reduction to $5,550, makes it perfectly conclusive. But, aside from all this, the contract, if concluded at this period, must have been for insurance on a valuation of $6,000 — ($5,550 not having thus far, been thought of); and yet the Bill distinctly states the insurance to have been in the sum of $5,550. Subsequently to this period, too, the complainant entirely changed his proposal, by reducing the amount of the valuation on which he had previously insisted; so that, whatever might have been the result, had there been no farther correspondence, the Company are not now. liable on any contract thus far completed.
    The .next step in the negotiations, was the notification by the Secretary that there was an overvaluation — one above the limit to which the Company always adhered. If a contract had been perfected, the complainant would have replied, that it was then too late for the discussion of that subject, as the valuation had been agreed upon and could not then be inquired' into. But he answered at once, admitting that his amount had been $450 too large. And, by framing his Bill upon the hypothesis that the sum covered by the insurance was $5,550, has admitted, either that no contract had, up to that time, been concluded, or else that it was abandoned when he proposed the new valuation.
    There was as yet, then, no insurance. The complainant in answer to the letter of the Secretary, had reduced his proposed valuation to a sum which he deemed low enough to be satisfactory to the Company; but, as this was a proposal of a character materially different from his previous proposition, it was of no force until distinctly accepted by the Defendants. And they did not accept it. So far from acceding to this new amount, the Secretary in his reply states distinctly his inability to comprehend it. And this is the only evidence which is adduced of its acceptance, with the exception of the item to which we shall presently refer.
    The last letter of the .Secretary concludes with the expression, “ It may stand insured until Monday, when we shall be glad to see you on the subject.” And it was by this, if at all, that the contract was completed.
    Did the writing of this sentence make the Company liable ? It does seem to us, that it can hardly be pretended that it did. Every offer of the complainant, and every reply of the defendants, had, up to that time, been in reference to an insurance for the voyage. There had been no -controversy between the parties as to the duration of the risk, though they had been unable to agree upon the amount of the valuation. The last offer of the Secretary was an entirely new proposition. The parties had been unable to agree. The complainant had insisted upon a valuation, which the defendants would not assent to ; and had declined acceding to the terms which the Company had proposed. It was Saturday night.- The parties were not likely to agree. And the Secretary proposed an insurance at market value and five per cent, until Monday; when the parties could have an interview, and if either should be satisfied with the valuation of the other, there would be no difficulty in perfecting an insurance for the voyage. Is.not this a fair statement of the proposition of the Secretary ? Could such an offer be of any validity whatever, unless distinctly and uncondition'ally accepted by the complainant ?
    Then, was it accepted ? Not at all. It was passed over by the complainant without the slightest attention. He replied to the former portion of the Secretary’s note, by asserting his readiness to prove the correctness of his estimate; but not one word did he utter as to the insurance until Monday.

      And, moreover, the Secretary had neglected in his offer to fix any rate of premium for the short insurance; and until this was agreed upon, no obligation could be incurred.
    A contract must be mutual. And yet who would pretend that if the complainant, on the ensuing Monday, had called upon the Company, to satisfy them, as he had intended, of the correctness of his valuation, and had failed in his purpose, and the parties had separated without any further agreement, that the defendants would have been entitled to the recovery of a premium ? If no loss had occurred, and on Monday the parties had not succeeded in agreeing upon the amount of the valuation — that question, which, up to Saturday night, “ had not .been fully decided and agreed to,”— and the complainant had gone elsewhere and effected an insurance, would the Company have been entitled to any premium whatever ? If so, how much ? Or, after such a failure to agree on Monday — say, if if the complainant had not called on the Company, and had neglected to obtain any subsequent insurance —?• would the defendants have been liable for a loss happening on Tuesday ? Or, suppose that there had been no agreement on Monday, and the voyage had terminated without any disaster, would the company, in such a case, have been entitled to a premium ? • If not, then, at the close of the correspondence, no contract had been completed. Its conclusion was dependent upon an agreement on Monday; and no such agreement is pretended to have been made.
    We have given this whole subject a very careful investigation ; and the result is, a conviction that our demurrer must be sustained. The defendants would not insure for the voyage, at the complainant’s valuation, and the complainant repudiated an insurance until Monday. The parties could not agree upon the terms of a contract; and, while negotiations wer&pending, the disaster occurred.
   Birchard, C. J.

The principal question presented by the bill and demurrer is, whether the application to insure was accepted. The complainant contends that a contract to indemwas ma(^e> an^ subsisted at the time that the loss happen-This the defendant controverts insisting that the agreement was incomplete. If the contract was made, though not reduced to writing, the obligation to perfect the insurance may be inforced, in a Court of equity. To sustain this proposition, the cases cited by counsel are full. This point is not seriously questioned.

In determining whether a contract was actually made, assuming all the allegations of the bill to be true, we must look closely into the correspondence between the parties, and see if from that, aided by the allegations of the bill, the evidence of the assent of both parties to the terms of the agreement be clear and unequivocal. The first proposition by Neville, of December 29th, was to effect an insurance from Cincinnati to New Orleans, for at least five thousand dollars, or his interest in two flat boat loads of Indian corn, supposed quantity 9,000 bushels, declaration of quantity to be made the next day. The Company replied, the next day, requiring a survey of the flat boats before they would decide upon the risk. The next step was to procure a survey, as required; and deposite 'with the company a more particular specification of the risk which the complainant desired to have taken. This second application, or specificatipn of terms, is the note of Neville, dated January 1, 1847. It requests insurance, hence to New Orleans, on the flat boats Eagle and Clinton, and their cargoes of 4,962 sacks of corn, &c., at $6,000, the surveys to be handed in the next morning.

The surveys were accordingly presented to the Company on the morning of the next day and the parties agreed that the premium for the risk should be four per cent, on the value of the property. The next step was a note from the Company’s clerk, stating that there appeared to be an overvaluation of the com, that their rule was market value and five per cent, added, which they always adhered to. “ Please let me know respecting it.”

Let us pause here, one moment, and consider what was the actual state of the negotiations at this point. There is a perfect agreement upon every subject necessary to constitute a policy, save one, and that was the valuation of the property upon whicli the risk was to be taken. Upon this point, the last proposition of Neville to value the boats and corn at six thousand dollars, was modified, and the proposal here offered is to fix that sum, so far as the com was concerned, at the market value, adding five per cent. One thing only was wanting to finish and perfect the contract. That one thing was Neville’s acceptance of this modification of the amount to be insured. He accepted the proposition by his third note. On your terms, the corn in sacks cost $5000. And as near as possible advances on the boats $550, to be included in the policy, $5550. The effect of this is the same as an affirmation in this form: “You have offered to value my corn and boats in the policy which you agree to issue, at the market cost and five per cent, added. I agree to and accept those terms, for that rule makes the sum $5550.” If this is not the language which this conduct speaks, we are unable to gather the meaning of men from their words and actions. Had the proceedings stopped here, however, there might have been some possible chance to doubt whether the perfect agreement as to valuation was entirely clear. We will see if the Secretary’s next note throws any light upon the question. To make the case more plain, let us transpose this letter. “ The market price and five per cent, is the rule.” “ We do not feel justified in deviating from it.” This is but reiterating the terms of the last proposition from the same party, which had just been acceded to. The only change is, market price is here substituted for market value; but the same idea is meant to be conveyed by each form of expression. The writer and the person addressed so understood the words, and both treated the terms market price or market value as meaning the cost of this corn in the market. But we will proceed with the residue of the 3d note: “ It may stand insured until Monday, when we shall be glad to see you. We cannot understand how 10,987 bushels of corn should cost $5000, when tpe mavket pr¡ce is but twenty-one cents.” The parties both , r , , . . , when this note was written, what their contract was. The risk was upon the corn and boats from Cincinnati to New Orleans. The premium at four per cent, on the value, and that value estimated at $5550, the market value, and five per cent. The sum had been stated by Neville and agreed to by the Company, they assuring him that it should stand insured at that sum till Monday,, when they would be glad to see him on the subject, because they-could not understand how his Indian corn cost so much more than the market price of other corn. Neville promptly replied -that he was prepared to show that the sum insured did not exceed their limit.

Throughout the whole of the negotiation there seems to have been no misunderstanding, and no difficulty except in settling upon the sum of the valuation. A valued policy was contemplated by both parties. All the negotiations had reference .to such a policy and none other. The rule of valuation had been stated in the private interview at which the four per' cent, premium was agreed upon. Neville, it is evident, was anxious that the sum should be fixed, so that in the event of a loss he would be relieved from the burthen of proving the value.

Both knew the amount' must be agreed to. Both agreed to the rule fixing the amount. Neville fixed the sum according to that rule, and the Company by their letter say it shall stand insured at that sum till Monday, when we want to see you, because we do not understand how you make it so large, when-other corn is twenty one cents only. ■ This was what Neville must have understood. It is what any one would have understood from all that had been said and done. The boats were to leave port that night. The necessity existed for a conclusion of the contract before they left port. It was concluded, and the Company became bound in equity, and agreed to abide the risk upon the $5,550 for the whole voyage, Unless upon the interview of Monday, such Explanations should be had as would induce Neville to reduce'his valuation. If we search for the thoughts of the parties, and gather them from their acts, the 3d note of the Secretary ought not to be understood as a disagreement to the sum fixed by the complainant. The object of it was to prevent the Company from being concluded, in case the amount should turn out to be fraudulently fixed above the actual value. We cannot understand how your corn cost so much above market price, yet it may stand insured until Monday, when we shall be glad to see you. How stand insured ? The answer is, upon the terms heretofore offered by us and to which you have agreed. Upon your valuation. Why stand insured at that rate for the whole voyage, till Monday only ? The answer is palpable. It is now too late to negotiate further. It is Saturday night and your boats must leave port to night. They must leave at your risk, unless we accept the risk for the voyage upon your terms. We therefore take it, relying upon your statement till Monday. But on Monday you must see us, for if you have deceived us on the subject of the value, it will be your interest to make the proper correction in the policy. We cannot understand, &c. As much as to say, we have relied on you, and if you have deceived us, we shall on Monday be able to satisfy you that it is for your interest to submit to a proper correction.

Suppose the voyage had been accomplished without loss, would the insurers have found any difficulty in recovering the premium of four per cent, on the $5,550 ? A majority of the Court think not. While we all unite in the opinion that if the Company in that case could have maintained a suit for the premium, the demurrer to complainant’s bill should be overruled. The case of the Ocean Insurance Co. v. Carrington, is relied upon to show that suit could not have been maintained for the recovery of this premium. But the cases are unlike. There, the offer of the Company was to insure 20 oxen and 26 horses, at fifteen per cent., or if the insured would warrant the property safe on a certain day, at ten per cent. Carrington accepted in this form, “We accept your terms, with a policy filled on 26 horses, valued at $2,200, and 20 oxen, valued at $800.” The Company forwarded a policy by mail on the following day, for on stock, &c., with this marginal note, “ 46 head of horses and oxen valued at $ 3,000.” The Court held that no recovery could be had for the reason that there was no contract. The ruling was doubtless right. The proposal was for a specfic valuation upon 26 horses; also, a specific separate valuation upon 20 oxen. The policy issued was for the aggregate value of both, and thus, instead of being an acceptance of the terms proposed, was an offer to insure on terms to which Carrington had not agreed. The case is sound law, but not decisive of this. It is not directly in point. A question has been made whether the decision of this Court, in Cockerell v. The Cincinnati Mut. Ins. Co., 16 Ohio Rep. 148, does not, in effect, determine this case. The point is not pressed, yet I. have to remark that this is a bill in equity to compel the execution of a. contract, as well as to obtain relief against the respondent, while that was a suit at law upon a policy, existing only in parol against the Company, whose charter, no less than the commercial law, required all her policies to be in writing.

Demurrer overruled, and leave to ansioer.

Hitchcock, J. dissented.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    Benjamin Doyle vs. The State of Ohio.
    An indictment found by a Grand Jury, composed of less than fifteen persons having the qualifications required by the statute, is not sufficient to put the accused upon trial 5 and a plea to the indictment that one of the Grand Jurors had not the requisite statutory qualifications, is a good plea in bar.
    This is a Writ of Error directed to the Court of Common Pleas of Jefferson County, and made returnable in Bank.
    At the May Term of that Court, for the year 1848, an indictment was prefered against the plaintiff in error, containing three counts : the first, charging him with stabbing with intent to kill, the second with stabbing with intent to maim, and the third with stabbing with intent to wound.
    The plaintiff in error having plead not guilty, at the September Term asked leave to withdraw his plea, and to file a special plea, which being granted, he filed his special plea, setting forth that Thomos Odbert, one of the grand jurors, by whom the indictment was found, at the time the indictment was found and returned, had not the qualifications of an elector, within and for the county of Jefferson, he not having resided within the State of Ohio for one year immediately preceding the finding and return of said indictment.
    To this plea a demurrer was interposed, which was sustained.
    The plaintiff in error thereupon asked leave to re-instate his plea of not guilty, which was granted.
    At the November Term the case was tried, the defendant found guilty, and sentenced to imprisonment in the Penitentiary.
    The decision of the Court below sustaining the demurrer to the plea in bar is claimed by the plaintiff in error to be erroneous.
    There were also exceptions taken to the charge of the Court, but as they were not considered by this Court in deciding the case, they are omitted here.

      J. 'M. Ef G. W. Mason, for Plaintiff in Error,
    cited and relied upon the following authorities :

      Mahan v. the State, 10 Ohio Rep. 232 ; Shoemaker v. the State, 12 Ohio Rep. 44 ; Croke’s Car. 134; Bacon’s Ab. 726; 1 Chitty’s Cr. Law, 252; Hawk. PI. Cr. b. 2, c. 25; 2 Hale, 155 ; Vatteer v. the State, 4 Blk. Rep. 74; State v. Ilurnden, 5 Blk. Rep. 75; Moore’s case, 9 Lee’s Rep. 639; State v Sea-born, 4 Dev. Rep. 305; State v. Freeman, 6 Blk. Rep. 248; State v. Middleton, 5 Porter’s Rep. 484; State v. Ligón, 7 Porter’s Rep. 167; State v. Lassley, Ibid. 526; State v.
      Duncan, 7 Yerg. Rep. 271 ; State v. Rickey, 5 Hals. Rep. 83.; v. Long, 2 Virg. cases, 318; State v. Rock-1 Hals. Rep. 332; State v. Williams, 5 Porter’s Rep. 130.

      Henry Stanbery (Attorney General) for the State,
    admitting that such a plea might be good in England, contended, that under our statute the objection came too late, and that though some of the States had followed the English decisions, they had done so without considering the difference of circumstances. He cited the following cases: Com. v. Smith, 9 Mass. Rep. 106; People v. Jewett, 3 .Wend. Rep. 314; Turk v. the State of Ohio, 7 Ohio Rep. part 2d, 240.
   Read, J.

The 1st section of the act relating .to jurors, provides that they shall be judicious persons having the qualification of electors. Fifteen qualified persons compose the grand jury, (§ 4.) Twelve of said jurors must agree before a bill of indictment or presentment shall be found, (§ 12.) No'man shall be put to answer any criminal charge but by presentment, indictment or impeachment. No persons can find an indictment but a grand jury. It requires fifteen qualified persons to compose' a grand jury. A less number is not a grand jury. Fourteen are not a grand jury. Fifteen not having the requisite qualifications are not a grand jury. Fifteen persons, some having the legal qualifications and others not, cannot constitute a grand jury. Hence in this case, if the plea be true — and its truth is admitted by the demurrer.— the indictment was not found by a grand jury. That which is claimed to be a grand jury was only composed of fourteen persons having the requisite qualifications. The fact that twelve of the grand jury may find a true bill is no answer to the objection. That does not prove' that a less number than fifteen qualified persons can compose a grand jury. Hence no indictment in this case was ever found by a grand jury, because there was no grand jury to pass upon it. Hence that which purports to be an indictment was no indictmnt, and the party charged could not be put upon trial to answer. It should have been quashed or set aside as a nullity.

But it is said the'objection comes too late. No objection can come too late, which discloses the fact that a person has been put to answer a crime in a mode violating his legal and constitutional rights. ' The'doctrine of waiver has nothing to do with criminal prosecutions. No person can be put upon his defence on the charge of crime,1 or ber be convicted of crime, except in the exact mode prescribed by law. And whenever it shall be made manifest, in the progress of a criminal prosecution, that the legal rights of the person charged have been.violated, the Court will permit the accused to have the benefit of the error.

It is said the prisoner might have exerted his right of challenge to the poll or the array. He might not know that he'was charged with crime, or that a bill would be found. But, apart from all this, the Court have the power only to try a person who has been indicted for crime. What an indictment is, is matter of law. Who shall constitute a grand jury, how it shall be summoned, composed and organized, is all matter of positive law. No man can, by his consent or will, constitute a grand jury. No man, by express consent, can confer jurisdiction upon the Court to try him for crime. No man, by express consent, can make that an indictment, authorizing the Court to try that which, in fact, was not an indictment. Much less could that be converted into an indictment which, in law, was not, by implied consent, derived from waiver or plea. Suppose that a paper, in the form of an indictment, should be put upon file, not purporting to be bound by a grand jury, could the person charged, by entering a plea of not guilty, confer upon the Court power to try and sentence him ? No one would pretend it.

Yet it is contended that if you-have the form and not the substance, that lack of vigilance or mistake to take advantage of it at the right moment, or in a wrong mode, will convert the shadow into a reality. This is neither true in reason or sound in law; and it is time, in criminal prosecutions, that the whole cob-web of legal fiction and technical inference against the ac- ’ cused should be stricken down.

The plea, in this case, is a complete answer why the accused should not be put upon his trial. It goes to the whole matter, that there is no indictment, that there was no grand jury. It is admitted that there was no grand jury if the aceused had said so in time. How can his delay make that a grand jury which was not so by law. It is not the accused that makes a grand jury, but the statute. The demurrer to the plea should have been overruled, and the indictment quashed. We are aware that authorities are to be found upon both sides of this question, but we regard it as perfectly clear.

The objections which were taken to the charge of the Court to the jury, we do not think it necessary now to consider.

Demurrer to the plea overruled, and judgment reversed.