protection of this policy. But the policy has not such an unlimited construction. One part of the voyage insured is to commence at the Canaries, and to terminate outwards, at a port or ports in Spanish America; but no voyage commencing at a port in Spanish America to another port in Spanish America is within the description. Insurance between New Or leans and 10. LIPPENCOTT V. LOUISIANA INS. Co. May T. 1831, 2 Miller's The defendants insured the schooner Volent for the term of six months" trading between New Orleans and any port in the any pert in West Indies, United States, or Gulf of Mexico, except Rio dies, United Grande or Brassos of St. Jago." the West In Siates or Per Cur. Porter, J. We are of opinion by the terms of the Mexico, &c. policy, the port of New Orleans is made one of the termini of the port of the voyages insured, and that a voyage between a port in the West Indies and a port in the United States, is not a voyage bethe termini, tween New Orleans and any port in the West Indies, United and a voy States or Gulf of Mexico. age be New Or leans is made one of tween a port in the West In dies and the CoIT ET AL. United not protect use and ed a known 11. V. THE COMMERCIAL INS. Co., Feb. T. 1811, 7 Insurance on 45 bales of Sarsaparilla on board the ship Paragon, frow New York to Amsterdam. The policy contained a Terms in a printed memorandum in the following words, "it is also agreed policy which by that salt, grain of all kinds, tobacco, indian meal, fruits (wheth er preserved or otherwise) cheese, dry fish, vegetables and roots, practice have acquir and all other articles, perishable in their own nature are warsense, will ranted by the assured, free from avarage unless general." The action was brought to recover the amount of a partial ing to that loss occasioned by sea damage. And the question was whether sense (e. g) sarsaparilla was to be considered a root within the memorandum sarsaparilla will be con of the policy. The Judge nonsuited the plaintiff on his offering included to prove that by the known usage of trade sarsaparilla is a root within the within the memorandum of the policy. be constru ed accord strued to be term roots. Per Cur. The plaintiffs offered the strongest proof that could be given of a mercantile usage, settling the meaning and extent of the term roots, in the memorandum of the policy, and that it did not apply to the subject in question. The only point then is, whether usage is admissible at all, to controul the ordinary and popular sense of the term. The rule has been too long settled to be now questioned, that if any terms in a policy have, by the known usage of trade, or by use and practice, as between assurers and insured, acquired an appropriate sense, they shall be construed according to that sense and meaning. This is not only the modern rule as to mercantile instruments in general, but it appears to have been the established practice as far back as the time of Lord Holt, Pickering v. Barkley, 2 Roll. Abr. 248 pl. 10; 2 Salk. 443. To reject this testimony now would produce the greatest injustice, for the contract must have been made and understood, at the time by the parties, in reference to this mercantile and practical meaning of the terms employed. Nonsuit set aside. 12. TENET V. THE PHENIX INS. Co. Feb. T. 1811, 7 Johns. N. Y. Rep. 363. strued in a The policy contained the following clause, "Warranted A near American property, proof to be required here only; also war- a policy open port in ranted not to abandon, if detained or captured, until after a de- must be con tention of six months, unless previously condemned; nor if re- geograpical fused admittance, or turned away but may proceed to another does not near open port." sense and clude the facility of if The vessel near the mouth of the Garonne met a British reaching a Squadron of five sail, and was boarded by an officer and in- the wind formed that all the ports from Russia to the Dardanelles were be fair, &c. blockaded by British ships, and the master was warned that if he attempted to enter them his vessel and cargo would be liable to capture, and was told that he must go to England or Malta or return to America. The master then proceeded to an English port (Falmouth) but springing a leak and meeting with adverse winds, for the preservation of the ship he was compelled to go into L'Orient, where the vessel and cargo was seized by the French government. Per Cur. Spencer. J. It is not essential to discuss the point of blockade de facto, of Bordeaux. Whether that port was blockaded or not, the facts shew that the Calliope was prevented, by the presence of a British squadron, from entering the port of destination. There was therefore, a turning away within the terms and spirit of the policy, and consequently there existed a right on the part of the insured to proceed to another near open port. The policy precludes the abandonment for the refusal of admittance, or a turning away. The questions then are, wheth er the French ports in the neighborhood of Bordeaux are to be considered open ports within the perview of the policy; and if An insur ance of car so, then whether the ship did not deviate before her arrival at L'Orient. The French ports were not shut by the Berlin and Milan decrees, and we are of opinion that Falmouth cannot be considered a near port to Bordeaux within the meaning of the policy and that an attempt to reach it was a deviation, if the ship was wide of the usual course of a voyage from Bordeaux to L'Orient, and consequently an end of the policy, and the underwriters are not liable. Judgment of nonsuit. 13. WOLCOTT ET AL. V. THE EAGLE INS. Co., 4 Pick. Mass. Rep. 429 LENOX V UNITED STATES INS. Co., 3 Johns. Cas. 178: SMITH ET AL. V. WRIGHT,1 Caines' N. Y. Rep. 44. Held by the court, Putnam, J. that where the insurance was upon "cargo and freight" the policy did not protect live animals (mules) shipped on board. Nor will it protect goods laden on tect live ani deck; but coin is protected by a policy on cargo and freight. go and freght," will not pro mals. The usag will control 14. Dow v. WHELTEN, ET AL. Dec. T. 1831, 8 Wend. N. Y. Rep. p. 160. Action on a policy of insurance from N. York to Batavia, up es of trade on goods out, and the proceeds thereof home. The goods arriv the term ed at Batavia, and from some cause the identical goods were re66 proceeds" shipped for New York and were damaged on the voyage. The in the poli plaintiff claimed to recover for a partial loss. The question was, whether the goods were covered by the policy-whether the word proceeds, according to mercantile usage, would include the same goods on a return voyage. cy. The maxim expressio Per Cur. Walworth, Chancellor. The term procceds, in its ordinary sense, would not include the outward cargo sent back in the same state upon the return voyage. The assured may nevertheless show, by testimony, that, by the known usage of trade, the word proceeds was understood to include the same goods brought back in the return voyage. XXI. OF THE ACTION. 1. PEARSON V. LORD, Nov. T. 1809, 6 Mass. Rep. 81. GATES, ET Case for money had and received. The defendant insured the exclusio al terius ap Brigantine Mariner, in his own name with the plaintiff. A loss unius est happened, and the plaintiff paid the defendant the loss under the policy. It was afterwards discovered, that the defendant plies with peculiar had covered more than his part of the Brigantine, by prior poli- force to the cies. The defendant was owner of but one quarter of the Brigantine, but the policies, although made in the name of the defendant, were bona fide intended for the benefit of the other owners, his partners. Per Cur. Sewall, J. No case can, I believe, be imagined, where the maxim expressio unius est exclusio alterius, applies more emphatically than in the naming of the party assured in the policy of insurance; especially when the contract is so carefully guarded against the case of over insurance, or a single subscription, or fraction of a subscription, exceeding the property at risk. Each policy and underwriter, where there are several upon one risk, is distinguished as engaged in a separate concern; and the liability of the insurer depends upon the order of time, in which the policies or subscription are effected. Here is a mistake, and the equity is with the party, whichever it may be, who has paid money upon it by a mistake of the fact. We conceive the plaintiff is entitled to recover back the sum paid. XXII. OF THE EVIDENCE. 1. ALLEGRE V. THE MD. INS. Co. June T. 1825, 6 Har. & Johns. Md. Rep. 408. law of insur ance. of trade sorted to, to Covenant on a policy of insurance. The defendant offered The usage to prove by the usage of trade, that it was customary for the may be re vessel to have on board a bill of lading, and invoice of cargo, explain the showing its prime cost and value, in order to explain the words, meaning of "proof of loss and adjustment thereof." Per Cur. Dorsey, J. Usages of trade are admissible in evidence, to explain the meaning of expressions contained in policies of insurance, charter parties, or instruments of like nature. But it was contended, that such proof could only be received of usages which relate exclusively to the course of the voyage. In support of this assumed distinction, no decision has been adduced, not even an obiter dictum, nor has any reasons been submitted to show why the terms of the policy of insurance may not be as well explained by any other commercial usage, as by usages of trade applicable only to the course of the voyage. contained in policies of insur ance. Parol evi dence may be admitted to explain the terms, skins, &c. furs. 2. ASTOR, ET AL. V. THE UNION INs. May T. 1827. S. P. COIT v. Assumpsit on a policy of insurance. The policy was on skins, hides, and other articles, perishable in their own nature. The plaintiffs offered to prove by parol, that by the usage of as including trade in New-York, furs are not to be considered within the meaning of the words skins and hides, in the memorandum; skins being those in which the skin constitutes the chief value, and furs being those in which the value is constituted by the fur. The judge decided, that if the term "skins" had, by the known usage of trade, or by the use and practice, as between assurers and insured, acquired an appropriate sense, it should be construed according to that sense or meaning; that parol evidence was admissible for the purpose of showing this fact. Verdict for plaintiff. Motion for a new trial. Per Cur. There can be no doubt, that taking the words skins and hides, in their largest sense, they include every article of the invoice. But the policy may be explained by showing a known usage of trade. New trial denied. Extrinsic evidence may be al lowed to prove the in terest of those not named in the policy. 3. FOSTER V. THE UNITED STATES INS. Co. March T. 1831, 11 Assumpsit on a policy of insurance containing these words; "cause Foster and Thompson to be assured, lost or not lost, one thousand dollars, on property on board the brig Sampson, at and from Havana to Boston." The declaration averred an interest in Gorham and others. The court, Putnam, J., held, that the words in the policy, owners of the brig Sampson," are merely words of description. of the persons interested. The insurance is on property generally, and it may be shown by extrinsic evidence, that the plaintiffs intended that the policy should cover separate or joint property, or both. And even where the assured are not named in the policy, it is competent to prove who they are by extrinsic evidence. |