Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

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 hy Malibran against the plaintiff, for the premium so received to his use? The plaintiff had in. sured, 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

Steinback v. Rhinelander.

intended for New York, and would, I think, have concluded the defendants. If it lay with them to show that the plaintiff effected the insurance, without any authority ; yet Malibran could, at his election, have affirmed the agency, and availed himself of the policy, equally as if he had previously made the plaintiff his agent, for omnis ratihabitio mandalo æquiparatur. The risk on the vessel may, therefore, be considered as having commenced against the defendants, and there ought not to be any return or apportionment of the premium.

I may add, that this conclusion appears equally inevitable, if Malibran's testimony be received, and it should be also admitted that the plaintiff acted as agent, without *authority. Neither of those question, let the deci- [*282] sion of them be either way, affect the case, as to the return of the premium, in the policy on the vessel. The defence, in either point of view, is equally solid.

In the other case, that of the insurance on the cargo, the question as 10 the competency of Malibran's testimony, is all important, for if that was admissible, I should incline to acqniesce in the verdict. But being excluded, the plaintiff has shown no title to the premium, because he has not shown that the voyage was altered or abandoned.

It lay with him to make out his case, and without that testimony, he shows nothing to entitle him to recover. The case stated for counsel which the plaintiff read on the trial, must be considered as his testimony, and not that of the defendants. The previous notice to produce that case was only for the benefit of a perusal of it, by the defendants, and did not render it incumbent on them to offer it in evidence after they had perused it. Nothing can be considered as testimony of a party, until it is offered to the court, and, in this instance, the case called for was never offered by the defendants. It was first offered by the plaintiff, and it being his testimony, it amounted to nothing more than his own declarations, and those too not under oath, and was certainly improper and inadmissible.

Steinback v. Rhinelander.

I am, therefore, of opinion, that in both cases, the verdicts ought to be set aside, and new trials awarded, for the admission of improper testimony, and because the verdicts are against evidence.

Judgment for the plaintiff, in both causes.(a)

(a) Mr. Duer rejects the doctrine of the principal case. In commenting upon the question, he remarks, “ Although the adoption of a voluntary insurance is necessary to render the contract valid against the principal, and proof of its adoption, to warrant the recovery of a loss against the insurer, we are not to inser that the agent who effects the policy, is at liberty to resciud his own contract upon proof either of his want of a previous authority, or of the resusal of the intended priucipal to ratify his act. In this, as in other cases, the agent who reclaims the premium, or resists its payment, may doubtless show that there was no properly at risk, to which the insurance could have been applied, so that from this cause the policy had never attached ; but the opinion that he is not permitted to invalidate the contract, by a denial of his own right to make it, is sustained by unanswerable reasons, and, as it seems to me, by controlling authorities. He who enters into a contract on behalf of another, affirms, by the very act, that he possesses the requisite authority, and if, from the desect of his authority, the contract is not obligatory on the principal, the voluntary agent, as a general rule, is personally liable. If such be the rule, even where the contract, by its general terms, is meant to chargo the principal alone, it applies with peculiar force to the contract of insurance. The agent, who effects, the policy, is himself a party to the contract, and by the universal usage, is immediately liable for the payment of the premium ; (1 Emerigon, ch. 5, 93, p. 137. Pothier Traite des Assur. n. 95, 2 Valin, 33, 34;) and it would be a strange violation of principle, to permit him to dis. charge himself from this liability, by evidence of his own misrepresentation and concealment. Nor is this all. It is an elementary rule, that the insurer is never bound to a return of the premium, on the ground that the risks in. sured had not commenced, if, under any circumstances, the payment of a loss under the policy, could have been claimed from him ; but a voluntary insu. rance, when the properly meant to be covered, is actually at risk, always creates this liability on the part of the insurer, sivce it is always possible that the insurance may be adopted by the person for whom it was intended; and had a loss occurred, it is fair to presume that this contingency would have happened, and payment of the loss have been demanded. Hence, to permit a voluntary insurance to be rescinded, when the risks have terminated sa sely, would lead to manifest injustice. It would cast the risks upon the insuror, and rob him of the premium. Under such a rule, a voluutary insuranco would be simply an engine of fraud--a contract to be rescinded when the property arrives, and valid only in the event of a loss.

On this question there is no discrepancy in the opinions of fore'gn jurists. We are informed by Emerigon, that by the law of France, where goods are

Steinback v. Rhinelander.

insured on account of whom it may concern, there can be no return of premium, if it appears that any goods were laden, to which the insurance could have been applied. (" Si le navire arrive a bon port, on n'ecoute pas celui qui s'etant fait assurer pour compte de qui il appartient, allegue que rien n'a été chargé pour son compte, car si le navire eut peri il auroit eut lo droit d'appliquer l'assurance à toute marchandize dont il eût montre le connoissement.” 1 Emerig. 322, ch. 11, § 4.) Pothier remarks that the rule by which the agent, who effects the policy, is made responsible for the payment of the premium, applies, with the strongest reason, to the case of an agent who is disavowed by those on whose behalf he had assumed to act. (A plus forte raison doivent ils (les commissionaires) etre obligés en leur nom lors qu'ils sont désavoués par ceux au nom desquels ils ont contracté. Traité du Cont. d'assur. 95.) Benecke explicitly states, that by the general law of Europe, an agent who, in effecting the policy, had omitted to disclose to the underwriters, that he had no authority to act, is never permitted to reclaim the premium he had stipulated te pay. Nor have we any reason to suppose that a different rule prevails in England. On the contrary, the cases to which I shall soon have occasion to advert, in which it was held that the person in whose behalf a voluntary insurance has been effected, may adopt the contract, not only after the happening, but even with the knowledge of a loss, necessarily imply that the insurer, whether the contract be adopted or disclaimed, is entitled to retain the stipulated premium. This was clearly perceived, and is distinctly stated by some of the judges; nor upon any other supposition, can these decisions be reasonably defended. (These cases are Lucena v. Crawford : Routh v. Thompson, 3 East, 274; and Hagedorn v. Oliverson, 2 M. & S. 485.)

To these remarks and authorities, there stands opposed a single decision of the Supreme Court of New York; but as this opinion was not unanimous, was made at an early period, when the law of insurance was yet imperfectly understood, is not supported by argument of analogy, and is entirely repugnant to the general law of commercial Europe, it is not probable, that its authority, as a precedent, would now be admitted, even by the tribunals of the state in which it was pronounced. (Steinback v. Rhirelander, 3 Johns. Cas. 269 ; 2 Duer on Ins. 141, et seq. 9 22, and notes II. and III. See also id. p. 174– 176, where Routh v. Thompson, 13 East, 289, Hagedorn v. Oliverson, 2 Maule & Selwyn, 485, Fleming v. Fuirhaven Ins. Co., 5 Metcalf, 192, and McCullough v. Royal Ex. Ins. Co., 3 Campbell, 406, are commented on, and shown to be at variance with the principle of Steinback v. Rhinelander.)

As to the description of the assured, see 1 Phillips on Ins. ed. 1840, p. 150, et seq. and ress. ; 2 Duer on Ins. p. 10, 9, and refs. As to the commencement of the risk, 1 Phillips on Ins. ed 1840, p. 436, et seq. and refs. Upon the return of the premium, 2 Phillips on Ins. ed. 1840, p. 526, et seq. ; supra, vol. I, p. 313, n. (a) to Delavigne v. United Ins. Co.; Waters v. Allen, 5 Hill, 421. Upon the evidence of Steinback, 2 Phillips on Ins. ed. 1840, p. 659 ; 2 Phil. Ev., Cow. & Hill's ed. 72, 263. Vol. III.

46

« ΠροηγούμενηΣυνέχεια »