Ferguson v. Harwood. 7 C. Upper Marlborough, June 16th, 1808. "Received of Walter W. Harwood, as one of the administrators of William Eversfield Berry, deceased, in part of my claim against şaid estate, the three hogsheads of crop tobacco, as above stated, to be allowed p. ct. the highest six months' credit price at this place during that time after the rescinding of the embargo. I have put into the hands of the aforesaid Walter W. Harwood, a bond of conveyance given by Elisha Berry to his son, William E. Berry, date March 14th, 1798, for the purpose of recovering the property therein mentioned, now depending in a suit in Prince George's county court. If the property is not recovered in the aforesaid bond of conveyance, I hereby bind myself, my heirs, executors, and administrators to return the above three hogsheads of tobacco, with legal interest, or the value thereof in money, to the aforesaid Walter W. Harwood, or to his heirs or assigns. The material facts, and the questions raised, appear in the opinion of the court. * F. S. Key, for the plaintiff. *J. Law, for the defendant. [ *410 ] [ * 411 ] STORY, J., delivered the opinion of the court, as follows: [*412 ] Several exceptions have been taken in this cause. The first proceeds on the ground that the record was not authenticated by the clerk in due form of law. The statute of the United States of the 26th of May, 1790, declares that the records and judicial proceedings of the courts of any State shall be proved and admitted in any other court within the United States, by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form of law. It is conceded that such a certificate accompanied the record objected to. It is, therefore, a case within the words of the law, and the court below were precluded from receiving any other evidence to show that the attestation was not in due form of law. The record so authenticated was properly admitted in evidence. Even if the points had been open, the court are not satisfied that any material variance existed between the attestations of the different clerks. The court are also of opinion that the second exception cannot be Ferguson v. Harwood. 7 C. sustained. The writing produced did not purport to be a record, but a mere transcript of minutes extracted from the docket of the There is no foundation laid to show its admissibility in the court. cause. [*413] The third exception has presented the chief difficulty which we have felt in deciding the cause. It is addressed to the variances between the declaration and the contract produced in evidence. The inducement of the declaration alleges" that the said Walter, as one of the administrators of William E. Berry, deceased, on, &c., at, &c., delivered unto the said Enos, in part of his claim against the estate of the said William, three hogsheads of crop tobacco, &c, he, the said Enos, to be allowed per cent. therefor the highest six months' credit price at the place aforesaid during that time, after rescinding the embargo." The contract produced in evidence is without the words "he the said Enos." There is, therefore, a literal variance, and its effect depends upon the consideration whe ther it materially changes the contract. In general, courts of law lean against an extension of the princi ples applied to cases of variance. Mistakes of this nature are usually mere slips of attorneys, and do not touch the merits of the case. Lord Mansfield has well observed that it is extremely hard upon the party to be turned round and put to expense from such mistakes of his counsel, and it is hard also upon the profession. It will be recollected that this does not purport on the face of the declaration to be a description of a written instrument, nor the recital of a deed or record in hæc verba. In respect to the latter, trifling variances have been deemed fatal; but as to the former, a more liberal rule has been adopted. In setting forth the material parts of a deed or other written instruments, it is not necessary to do it in letters and words. It will be sufficient to state the substance and legal effect. Whatever, however, is alleged, should be truly alleged. A contract substantially different in description or effect, would not support the averment of the declaration. In the case at bar, it is very clear that the word "Enos was by a mere slip inserted instead of "Walter." It is repugnant to the sense and meaning of the contract that the creditor who received the tobacco at a stipulated price in part payment of his debt, should allow to himself that price. From the nature of the transaction [*414] the debtor must be entitled to the allowance. If the same words had been introduced into the written contract itself, they must have been rejected as nonsensical or repugnant, or have had imposed upon them a sense exactly the same as if the words had been "the said Walter." And a declaration which should altogether Ferguson v. Harwood. 7 C. have omitted the words, or have given that legal sense, would have well supported an action. Can a different result take place, where the repugnancy is not in the contract, but in the declaration? A majority of the court are clearly of opinion that it cannot. The words of a contract stated in a declaration, must have the same legal construction as they would have in the contract itself. The context manifestly, in this case, shows the repugnancy. It is impossible to read the declaration and not to perceive that the price is to be allowed to the debtor, and not to the creditor. Many cases have been cited where the variance has been held fatal, but no one comes up to the present. The case of Bristow v. Wright, Doug. 665, is the strongest. There the demise was alleged to be at a yearly rent payable quarterly. The demise proved was without any stipulation as to the times of payment. The court held that the demise laid and that proved were not the same. But if the demise had been truly laid, and the declaration had proceeded to allege that the rent was to be paid by the lessor to the lessee, we think that the action might well have been maintained notwithstanding the repugnancy. That in effect would be the same as the present case. In King v. Pippet, 1 T. R. 235, where the declaration set forth a precept, and improperly inserted the word " if," which made it conditional, the court rejected the word, and held the variance immaterial. The court said it was impossible to read the declaration and not to know what it should be. There are other cases to the like effect. We are therefore satisfied that the variance is immaterial, because it does not change the nature of the contract, which must receive the same legal construction, whether the words be in or out of the decla ration. A second variance is supposed in the allegation that the promise was to return the tobacco or its value, if the pro- [415] perty in the bond of conveyance mentioned in the declaration was not recovered in the suit then depending for the recovery thereof; whereas the contract produced in evidence contained no limitation to a recovery in that particular suit. We are satisfied, however, that the plaintiff has declared according to the true intent of the parties, as apparent on the contract. It could never have been their intention to postpone the right to a return of the tobacco or its value, beyond the time of a recovery or failure in the suit then depending. Any other construction would have left the rights of the parties in suspense for an indefinite period, wholly inconsistent with the avowed objects of the contract. On the whole, it is the opinion of the court that the judgment be affirmed, with costs. Biays v. Chesapeake Insurance Co. 7 C. BIAYS U. THE CHESAPEAKE INSURANCE COMPANY. 7 C. 415. Under a warranty by the assured, "free from average, unless general," the underwriter is not liable for a partial loss. The destruction of part of a cargo, consisting of the same kind of articles, is a partial loss only; not a total loss of such part. The clause authorizing the assured, in case of any loss or damage, to sue, labor, &c., applies only to losses within the policy. ERROR to the circuit court of the United States, for the district of Maryland, in an action of covenant upon a policy of insurance. [ * 416 ] * On a case stated, the judgment of the court below was for the defendants; on which the plaintiff brought his writ of error. Harper, for plaintiff. [* 417 ] *LIVINGSTON, J., delivered the opinion of the court, as follows: This is an insurance on hides, "warranted by the assured free from average, unless general." The declaration is for a total loss by perils of the seas, but it came out in evidence, that 3,280 hides, the whole number insured being 14,565, were put on board of a lighter, to be transported from the vessel to their place of destination that the lighter on her passage to the shore was sunk, by which accident, 789 of the hides, of the value of $4,000, were totally lost, and the residue, to the number of 2,491 more, were fished up and saved, at the cost of $6,000, which were paid by the plaintiff. The hides thus saved were delivered to the plaintiff's agent, and sold on his account. The whole sum, insured on the cargo of hides by the defendants, was $25,000. On this state of facts it has been contended, that this insurance, although on perishable commodities, being in gross on a cargo consisting of a distinct number of articles, there may be a total loss as to some of them, although others be saved, and that, for the part of the cargo thus totally lost, the underwriters are liable, notwithstanding the agreement respecting what are generally called memorandum articles. In support of this position it is said that the only intention of the parties, in coming to this agreement, was to obviate disputes concerning losses arising from the perishable nature of the goods insured, but that as this loss happened in another way, and is total as to the portion of the property in question, it ought not to be considered as excluded by the memorandum. [ * 418 ] *Whatever may have been the motive for the introduction of this clause into policies of insurance, which was done as Biays v. Chesapeake Insurance Co. 7 C. early as the year 1749, and most probably with the intention of protecting insurers against losses arising solely from a deterioration of the article, by its own perishable quality -or whatever ambiguity may once have existed from the term average being used in different senses, that is, as signifying a contribution to a general loss, and also a particular or partial injury falling on the subject insured, it is well understood at the present day, with respect to such articles, that underwriters are free from all partial losses of every kind which do not arise from a contribution towards a general average. It only remains then to examine, and so the question has properly been treated at bar, whether the hides, which were sunk and not reclaimed, constituted a total or partial loss, within the meaning of this policy. It has been considered as total by the counsel of the assured, but the court cannot perceive any ground for treating it in that way, inasmuch as out of many thousand hides which were on board, not quite 800 were lost, making in point of value somewhat less than one sixth part of the sum insured by this policy. If there were no memorandum in the way, and the plaintiff had gone on to recover, as in that case he might have done, it is perceived at once that he must have had judgment only for a partial loss, which would have been equivalent to the injury actually sustained. But without having recourse to any reasoning on the subject, the proposition appears too self-evident not to command universal assent, that when only a part of a cargo, consisting all of the same kind of articles, is lost in any way whatever, and the residue, which in this case amounts to much the greatest part, arrives in safety at its port of destination, the loss cannot but be partial, and that this must forever be so, as long as a part continues to be less than the whole. This loss then being a particular loss only, and not resulting from a general average, the court is of opinion that the defendants are not liable for it. Having disposed of this point, it would seem as if much difficulty could not occur in deciding the other question, which has been made in this cause, and that is whether the assured is not entitled to recover the *expenses which he was put to in saving [* 419 ] part of the hides which had sunk. This liability is supposed to result from that clause in the policy, which authorizes the assured, " in case of any loss or damage, to sue labor, and travel for, in and about the defence, safeguard, and recovery of the goods, or any part thereof, to the charges whereof the assurers will contribute according to the amount of the sum insured." If this clause be construed with reference to what is most evidently its subject-matter, that is a loss within the policy, and in connection with other parts of the instrument, it seems impossible to misunder |