Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Steinback v. Rhinelander.

plaintiff was in any manner interested in this vessel. Mali-
bran was his agent, and consignee of the cargo of the ship
Albemarle, belonging to the plaintiff, and, of course, had
funds of his in his hands; but this, by no means, shows a
general partnership, or that the plaintiff was concerned in
all the speculations of Malibran. The relation given by
Captain Brown, likewise, strongly corroborated the testimony
of Malibran, with respect to the plaintiff's having no interest
in the vessel or cargo, and, by no means contradicts it, as to
their destination. Captain Brown sailed shortly after Mali-
bran had made the purchase of this schooner, and before he
had finally determined where he should send her. If Mali-
bran had considered the plaintiff in any manner concerned
in this transaction, or had wished an insurance for New
York, it is inconceivable why some intimation of it was not
given, either to Captain Brown, or in the letters written to
the plaintiff, or to Murray. Another circumstance in cor-
roboration of Malibran's testimony, that the papers were
merely colourable, is his letter to his agent at the Havanna,
by which it appears that he made a bona fide attempt to get
insurance from Trinidad to the Havanna; and his failing
to do so was merely accidental, owing to the heavy rains
which detained the express who carried his orders for in-
It seems a little extraordinary, that the plaintiff
should obtain this insurance without having some intimation
from Malibran of his interest, or a request to insure. These,
however, are only circumstances that would go to the credit
of Malibran, as he expressly denies the facts. But I
[*277] think the transaction *susceptible of an explanation
that will acquit the plaintiff of suspicion of unfair-
Malibran was the consignee of the cargo of the ship
Albemarle, (belonging to the plaintiff,) and having the pro-
ceeds in his hands, the plaintiff did not know but they might
be appropriated to the purchase of this schooner and cargo ;
and, although no information to that effect had been recei-
ved, yet he thought it most prudent to obtain insurance, re-
lying, probably, on his right to demand the premiums again,
if he had acted in good faith, and had been mistaken with.

[ocr errors]

Steinback v. Rhinelander.

respect to the voyage, or his interest in the vessel. This also accounts for the entries in the plaintiff's books, as to the charge of the premiums, they being made at the time the policy was effected, and while the plaintiff was ignorant of the true situation of the business. It was said, on the argument, that this being an insurance at and from Trinidad to New York, the policy attached inmediately, and it is immaterial on what voyage she afterwards sailed; the risk commenced while she lay in port. Admitting the full extent of this position as a general rule, still it cannot be applied here, for the policy could not attach, or the insured recover, in case of a loss, unless he had an interest in the subject of insurance. If, therefore, the whole of this vessel was the property of Malibran, the underwriters never could have been made liable to the plaintiff, in case of a loss, he not having any interest in the subject insured.

On the whole, I am of opinion that the plaintiff had no interest whatever in this schooner; that the policy was effected through mistake, for want of correct information on the subject; the insured supposing at the time he might have an interest, when in fact he had none; so that there could be no insurance on account of the plaintiff himself; that he was totally unauthorized by Malibran to get insurance on his account; that the vessel never did sail on the voyage described in the policy, and that no risk has been run by the underwriters. The premium, *there- [*278] fore, was paid without consideration, and through mistake, and ought, in my opinion, to be returned.

I am, therefore, against granting a new trial; and, for the same reasons, I think the verdict ought to stand in the suit, also, on the policy on the cargo.

RADCLIFF, J. and LEWIS, Ch. J. concurred.

LIVINGSTON, J. having been concerned as counsel in the cause, gave no opinion.

KENT, J. The two cases contain some material points of difference between each other, but there are certain questions that equally apply to both, and those I shall first consider.

Steinback v. Rhinelander.

The plaintiff insured in both cases, on the account of himself or of Peter Malibran, or of Murray & Son and himself; but it is stated as a fact, that Malibran alone purchased the vessel, and there is no evidence to rebut the presumption that he was the sole owner. The plaintiff, then, contracted with the underwriters as agent for Malibran, in whom the property existed; and the first question that arises is, whether he can now be permitted to deny that he was an agent, in opposition to his own act and contract with the defendants. To permit this, would be opening a door to infinite fraud. and abuse, and would be destructive to fair dealing and to commercial confidence. The broker may have told the defendants that the plaintiff had no orders from Malibran to insure, but this could only allude to special instructions in that case, and could not be understood as a denial of his general authority as agent, and under which it must be intended that the insurance was made. His act is conclusive evidence against him, that he had or assumed to have that authority.

An unauthorized agent cannot, indeed, bind or affect the

person for whom he acts; but he himself ought not [*279] to be capable of rescinding his own contract. Third persons whose rights are involved by his assumed agency, can hold him to his own declarations and engagements. The plaintiff, therefore, who contracted with the defendants, as agent, cannot be permitted, in a suit between him and them, arising on the same contract, to deny himself. In respect to them he must be deemed bound. This is a sound principle of justice and public policy. The question then arises, is Malibran a competent witness for him, after the point is established that he was the agent of Malibran, or at least, that it does not lie with him to deny it? If he was Malibran's agent in effecting the insurance, then Malibran has an interest in the recovery of the premium; for the premium, if recovered back, will belong to Malibran, as the cestui que trust, and for whose benefit the premium was paid. The release from the plaintiff to Malibran is here in

Steinback v. Rhinelander.

terposed as destroying that interest; but that release only operates to take away any future action that the plaintiff might have against Malibran, by way of indemnity for the loss of the premium. It does not prevent any further demand of Malibran against the plaintiff, in case the premium should be recovered. To produce that effect, Malibran ought, also, to have released the plaintiff. They should have interchanged releases, in order to do away all objection on the ground of interest; but the release only comes from the plaintiff. Suppose a recovery by the plaintiff, what is there to prevent a suit by Malibran against the plaintiff, for the premium so received to his use? The plaintiff had insured, as agent of Malibran, and for his benefit, and the presumption is, until the contrary be shown, that payment by an agent, for and on account of his principal, is payment with the principal's money; because, in judgment of law, it is a payment by the principal himself, and the money, when returned, will, of course, belong to the principal.

*If the point once be established, that the plaintiff [*280] is, in respect to the present suit, prevented from denying that he appeared in his true character, when he appeared before the defendants as agent of Malibran, all these consequences are to be presumed; and whether the premium that he advanced was of his own proper money, or that of his principal, will remain to be ascertained when he and his principal shall come, hereafter, to settle or to litigate with each other. In the present suit, all such inquiries must be precluded; and we are now to hold the plaintiff to his assumed character, in which only the defendants are to know him. With them he contracted as agent, and with them he cannot lay that character aside. Between him and his prin cipal, the real truth of the transaction can be disclosed, and the mistake, if any, corrected.

These principles appear to me to be solid, and founded on essential principles of law, of commerce, of convenience and of good faith; and the result is clear and inevitable, that as to ths present suits, we cannot but regard the recovery that

Steinback v. Rhinelander.

may be had, as enuring to the use of Malibran; and he not having released that interest, is directly interested in the event of the present suits, and ought, therefore, to be considered as an incompetent witness.

The agency of the plaintiff, and the incompetency of Malibran as a witness being established, we are next to see how the case stand, under the control of these positions.

In the case of the insurance on the vessel, the law is, that if the insurer could ever have been called upon, under any circumstances to pay; if there was a risk once begun, although founded upon a contingent interest, there cannot be a returm of premium. (8 Term Rep. 154.) The insurance on the vessel was at and from Trinidad in Cuba, to [*281] New-York. These words include the time the "ship is in port, or if she be not a native of the port, but had arrived there from abroad, then these words include all the time from her first arrival. (1 Atk. 545, 548. 2 Atk. 359. Marshall, 193.) In the present case, the vessel was brought into Trinidad, as a prize, and purchased by Malibran, shortly before the policy was effected; and this information was received by the plaintiff, and communicated to the defendants, together with the additional fact, that a crew had been sent for, and that the vessel was coming to New-York. In such a case, the words at and from must be considered as reaching back to the time of the purchase, in April, as being equivalent to the first arrival on a voyage. This is no more. than a reasonable and just interpretation of the words in the present case. There can be no doubt, then, but that the defendants ran a risk on the vessel, for if she had been lost, while lying at Trinidad, and before any orders to effect insurance for the Havanna, Malibran could have sued the defendants, and they would have been left without defence. His interest would be ascertained beyond a doubt, and have reduced to certainty the identity of the insured. The declared intent of the voyage to New-York, the sending to the Havanna for American papers, and the documentary ship papers, would all have established the voyage to have been

« ΠροηγούμενηΣυνέχεια »