Astor and Astor against The Union Insurance Company

Astor and Astor against The Union Insurance Company. NEW YORK, May, 1827. Where goode are warranted, by the memorandurn i~n a policy of insurance, free from average unless general, the loss ny sea damage must be total in fact, to warrant a recovery by the assured. The policy of insurance was on fwr. The title of the invoice was furs; under which it detailed bear and racoon skins, oppossum, deer, fine fisher, cross fox, martin, wild cat, wolf] wolverine, panther, and cub skins. The" memorandum warranted skins and hides, and all other articles perishable in their nature, free from average unless general. The articles in the invoice were deteriorated by sea damage to more than half their value, and the insured abandoned. In an action upon the policy, held, that it was competent for the plaintiff to show in evidence, that the term fur, covered the skins in the invoice; and that the terms hides and skins, in the memorandum, in mercantile usage, did not include them ; also that they were not articles perishable in their nature within the meaning of these words in the memorandum. "And the jury having, on conflicting evidence upon these quéstions, found for the plaintiff, though contrary to the charge of the circuit judge, the supreme court refused to set aside the verdict. ASSUMPSIT on a policy of insurance, tried at the New York circuit, January 12th, 1826, before EDWARDS, 0. Judge. Where a question of fact proper for the jury is submitted to and passed upon by them, the verdict will not be set aside as against the weight of evidence, unless it be clearly so; even though it be directly contrary to the charge of the judge. When the meaning of a word, used to designate an article of trade, is to be fixed by proof of mercantile usage, it may be by the usage of trade among merchants dealing particularly in that article. Underwriters insuring by certain words are bound to know the mercantile meaning of the words: and are liable according to that meaning. Semble, that the meaning of the clause, all other articles perishable in their own nature, in the memorandum of a policy of insurance, extends to those articles not particularly enumerated, which are liable to perish of themselves in the course of the voyage, without any external injury. Upon the trial of the question whether certain articles are within the memorandum in a policy of insurance providing against particular average, evidence that the agent of the assured urged the taking of the risk, on the ground that the articles would be free from particular average, is inadmissible. So is evidence showing insurances at a higher premium on non-memorandum articles for «he same voyage, by persons other than the underwriter to the policy in question: and that insurance officers commonly charge a higher premium on such articles. *The claim at the trial was for a .total loss. The policy -i.*/ produced at the trial was underwritten by the defendants, for $15,000, at a premium of two per cent, on a cargo of £ur owne¿ an¿ shipped by the plaintiffs on board the brig Twey Brudie. The voyage was at and from New York to Hamburgh. The brig sailed October -27th, 1819, the. date of the policy, which contained the usual printed memorandum; by which (inter alia) skins and hides, and all other articles perishable in their own nature, were warranted free from average unless general. The invoice proved, was headed “ Invoice of furs,” &c. But in the body, .they were .described as bear and racoon skins, op-possum, deer, fine fisher, cross fox, martin, white racoon, wild cat, wolf, wolverine, panther, and cub .skins, amounting in the whole to between 23 and 24,-000 dollars. It appeared that the brig was wrecked or stranded, on her voyage, near Ouxhaven, but the cargo was saved and transported by land to Hamburgh, where .the goods in question were found to be so much damaged, and in such a perishable condition from being penetrated by sea-water, and partly in a rotton condition, that they were sold at r J ' . auction for less than one half the invoice price. February 7th, 1820, the plaintiffs abandoned as for a total loss. The plaintiffs then offered to prove by parol that, by the understanding of the trade in the city of New York, furs are not considered to be within the meaning of the words skins and hides, in the memorandum; skins being those where the skin constitutes the chief value; and furs those where the value is constituted by the fur. This was objected to by the defendants as contradicting or explaining a written instrument, and because the goods insured were described by the plaintiff in the invoice as skins. That if parol evidence was admissible at all, to control the interpretation of the policy, it could only be of general mercantile usage; or of the practice between the assurers and assured, and not a usage confined to furriers, or persons dealing exclusively in furs; since,' of a usage thus restricted, it was not to be presumed the insurers had any knowledge, or that the policy was made in reference to it. The "^judge decided, that if the term skins had, by the Known usage of trade, or by use and practice as between assurers and assured, 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. He, therefore, allowed the evidence offered to be given. Seven witness were then sworn on the part of the plaintiffs. Wm. Howard said he had been a dealer in furs about twenty years. Furriers generally use the terms furs and peltries, (all of which are included in the term skins.) Fur is more perishable when left on the skin; would not perish so soon from water if off the skin. If furs were put up in a new puncheon, thought they would keep twenty years. The skin is liable to perish from damp and heat alone, (but not so rapidly,) and thereby the fur is destroyed. Skins with the fur on are as liable to perish as without it. He calls bear, deer, and wolf skins, and some people call racoon skins, peltries. Had known fur off the skin to be imported; but never knew any exported off the skin. Furs on the skin perish quickly if wetted ; bnt he has known packages wetted at one corner, and the injury not to extend beyond the part wetted. Ebeneaer White said he had been a retail dealer in furs about ten years ago. The understanding generally is, that when you have an invoice of skins, all those of which the value consists in the fur, are called furs or fur skins; the others peltries. That racoon skins are not called peltry; but bear, deer, and wolf are. Cross fox, wild cat, and panther are called fur. Bear skins are valuable only with the fur on. So also the fox, peltries, and those from which the fur is not usually cut off. Fur is less liable to injury when separated from the skin. Skins will mould when covered with fur and packed. E. Baymond, another dealer in furs, said, hides and skins are such as are used for leather. Those not usually tanned are fur. By peltries, he understood skins without any fur on; as deer skins. But he gave merely his own impressions, without knowing the general understanding among merchants, importers, and exporters. *The term skins is indiscriminately applied to fur skins as well as others, in invoices. H. Brevoort, for many years a wholesale dealer and shipper of fur, said, for many years his understanding and belief was, that the term hides and skins, as used in the memorandum, did not extend to fur skins; and he therefore supposed, that on the average loss of fur skins, he would be entitled to recover; but about seven or eight years ago, he found it was otherwise; and has since altered his mode of insurance. Fur skins, when put in a rum cask, he should not consider as liable to perish any more than a bale of cloth. Under the term fur, he would include all skins having fur on them, and valuable particularly for the fur. Understood skins to be a generic term, including all kinds of skins, as well peltries and fur skins as others. Mr. Deforest understood furs to mean skins valuable on account of the fur only ; but skins to mean such as are valuable only for the skins, though sometimes this term is used as applicable to fur skins, as well as others. J. C. Halsey had been a dealer in furs about nine years; and never heard the term skins or hides to include fur; but understood skins to mean those valuable for the skins only. Supposed, however, that an insurance on skins would cover fur skins. Understood peltries as including deer, bear, and racoon skins, where the fur is not used separate from the skins. Bear, opossum, cross fox, wolf, wolverine, and panther, he thought peltry. Did not think furs well packed and kept dry, as perishable in their own nature. Fur skins are put up with a great deal of care; and he would not consider a bale of fur properly packed as more liable to perish than cloth or tobacco; though, if wet, it would be more liable to perish than a bail of cloth. A. Voorhies, a dealer in fur for several years, drew the same distinction between furs and skins as the other witnesses. Believed that, on insurance upon skins, he would be entitled to recover on fur skins. Did not think them more perishable than broad-cloths. The counsel for the plaintiffs here having closed the testimony, the defendant moved for a nonsuit, on the ground *of the insufficiency of evidence. But the judge directed the cause to go to the jury. On the part of the defendants, a fur merchant, an insurance broker, and several officers of insurance companies in the city of New York, were sworn; and all concurred in denying that the word skins used in the memorandum, had, as between insurer and insured, acquired a sense which excluded fur skins; and the merchant, who had also been an officer in an insurance company, swore that he had understood skins to include furs; and that this was the understanding among merchants. It appeared that one Roberts effected the insurance for the plaintiffs as their agent. The defendants offered to prove a conversation of Roberts at the time,'in which he urged that the company ought to take the risk at a low premium, because they would not be subject to particular average. The plaintiffs objected to proof of Roberts’ representations unless in writing ; and unless it was shown that they were authorized by the plaintiffs. The next offer was overruled; and the defendants excepted. The defendants then proved that G-. H. had made a ship ment of oil on the same voyage; and had insured it in October, 1819, at the American office, at 3 1-2 per cent. That oil was not a perishable article within the memorandum ; and that on the same voyage, other goods, not within the memorandum, and belonging to a different person, were insured at another office at the same premium; and that insurance companies always make a distinction between articles within and without the memorandum, by demanding a higher premium on those which are subject to average. The counsel for the plaintiffs objected to the whole of this evidence; and it was excluded by the judge. The judge charged that the plaintiffs had failed entirely to prove that the term skins, as between insurer and insured, or by general mercantile usage, had acquired an appropriate sense, so as to exclude skins covered with fur; but if such proof had been given, it clearly appeared from the evidence, that fur skins were an article perishable in their own nature, within the meaning of the memorandum ; *and on that ground the defendants were entitled to a verdict. He further instructed the jury, that a claim by the plaintiffs for a general average could not be sustained. The jury found for the plaintiffs for a total loss. J. Duer, for the defendants, moved for a new trial, on these points: 1. That the parol evidence to control the terms of the policy was improperly admitted; 2. That the plaintiffs’ evidence was insufficient to carry the cause to the jury; 8. Evidence of Roberts’ declarations was improperly rejected; 4. The defendants should have been permitted to prove the difference of premium between memorandum and non-memorandum articles; 5. The verdict was against law and evidence. He conceded, that the known usage of trade, or use and practice between assurers and assured, were admissible, to show that skins in the memorandum did not mean fur. He said this was so settled in Coit v. The Com. Ins. Co., 7 John. 385. The substance of the cases is perhaps better expressed in Robertson v. French, (4 East. 135,) that the meaning of a policy, like that of every other written contract, is to first collected from its terms as they are understood in their plain, ordinary and popular sense, unless they have generally, in respect to the subject matter, as by the known usage of trade or the like, acquired a peculiar sense as distinct from the popular sense of the same words. The party must establish the new meaning clearly; the mind must not be left in doubt. If there be a doubt, the decision should be in favor of the popular sense. Again, here was no usage of trade shown or attempted to be shown, within the meaning of the cases. They do not mean the usage of a particular trade confined to the article; but usage of trade generally. Here was no proof of general mercantile usage. Unless the sense differing from the popular one is general and certain, the rule opens a door to perpetual litigation. But, admit that fur skins are not within the particular words skins or hides as used in the memorandum; we show fur skins to be perishable in their own nature; and thus *bring ourselves within the general clause of the memorandum. Why are skins used in the memorandum at all? The reason given by some of the witnesses is, that they are perishable; and fur skins are equally so with any other skins. The phrase, “ all articles perishable in their own nature,” in its most extended sense, includes everything; but, in its technical sense, such articles alone as in their own nature and constitution, without any external cause, are liable to decay; or such as are peculiarly liable to be affected by the perils insured against; or the ordinary perils of navigation. The latter appears, from the circumstance that bar iron is specifically enumerated in this and other usual memoranda. Ho one can say from this evidence, that skins are not equally liable to be affected from all or any of these causes. Again; we offered to show that the premium .was, in fact, reduced, on the supposition that fur skins were excluded from the memorandum. Such.evidence cannot be listened to without conviction. The court had been perplexed by contradictory and circumstantial evidence. We r JJ 1 evidence to remove the doubts it was calculated to create; and establish beyond all question the understandjng 0f ^g parties. I challenge a case where parol evidence is admissible on one side, and not on the other to the same point. Here the direct question was, what the parties understood at the time; the intent of the parties in the employment of a certain term. To this we offer direct evidence. In every, case of a latent ambiguity, which is always created by parol evidence, dehors the instrument, the same kind of evidence is proper to explain it. Take the common instance of a bequest to legatees of the same name. G. Griffin, (same side) cited, to the 3d point, Souverbye v. Arden, 1 John. Ch. Rep. 240; Birch v. Depeyster, 4 Campb. 385; 1 Stark. 210, S. C.; 2 Crunch. 210; Peich v. Dickson, 1 Mason, 9 to 12; Livingston v. Delafield, 1 John. Rep. 522; and Cole v. Wendell, 8 John. 116. *T. J. Oakley and T. A. Emmet, contra. The skins in question were used exclusively for the value of the fur; and the offer was to prove that they had acquired a meaning in the market differing from the word skins; that this species of skins had acquired the name of fur. This we no doubt had a right to do. (Phil. on Ins. 487, and the cases there cited.) The judge, in his charge, adopted the precise language of the decision in Coit v. The Com. Ins. Co. The offer was the ordinary one; to show that a generic term did extend to every article which its ordinary sense might include. It is enough, that the usage be either general or exist between assurers or assured. (Phil. on Ins. 14, and the cases there cited.) Page 18 of the same author, shows what the usage must be in its duration and character. (And vid. id. 487.) It is pretty clear from the memorandum itself, that it did not mean to use shins in their broadest generic sense; for the word hides is introduced. (2 Marsh. on Ins. 819.) Gentlemen do not understand us, if they suppose we mean to admit that the sense we are seeking to establish differs from the common sense of the word among mankind. We say, first, that in the most usual and popular sense, shins J1 1 A A __ _ do not mean far skins; that they are universally known and understood by the name of furs: but if not, at any rate, they are so understood, having acquired that meaning by commercial usage. The judge held the case a proper one for the jury upon these questions. He finally charged against us on the fact; but the jury, as they had a right to do, differed with him, One question is, whether the court tvill disturb the verdict upon the weight of evidence. The commercial meaning of a term appropriated to a particular article, is the meaning attached to it by those who deal in the article. Those who buy furs and skins are the very men to determine that meaning. In fixing the meaning of a word used to signify any article of produce, you look to what it signifies among the growers, the buyers and sellers. Those who are best acquainted with the term used among dealers, are the best able to speak of *it. How, the dealers in fur, or fur,skins, all swore for us; the insurers all against us. The jury have decided between them. True, the usage should be one among merchants; but among what merchants ? It must be, from its very nature, among those who deal in the article. There cannot be a usage among those who have never dealt in it at all. The insurance companies knew nothing except as to the practice at their offices. The usage in question does not signify their meaning, or a meaning confined to them. They are bound to know the commercial meaning of a term used in a policy. But if a more general usage than that among dealers be necessary, it will be remembered that we proved various prices current in which the skins in question are arranged according to our testimony. [These were produced on the argument,] Proof of a general, uniform and definite usage is required by the opposite counsel; but surely it cannot be necessary to show a usage without exceptions. The word' uniform, applied to usage or custom, is not to be understood in its literal sense. There is no practice in community which can be set down as general without exception, The jury have pronounced our usage a general one. That is enough. But in common parlance and common- sense, when we speak of furs, we mean skins which are useful mainly for their fur. The distinction is made in our tariff. (Grayd. Dig. Duties, (F.) Ing. Dig. 180.) Whether this be so or not> the jury have pronounced, as was their province, if they thought it not necessary to show a commercial meaning. The course is for the jury to pass upon evidence of this nature. (Baker v Ludlow, 2 John. Cas 289.) The case cited shows the arrangement in the words of the memorandum. The question as to the perishable nature of the articles in question, was also put to the jury; and there is certainly no such preponderance of evidence upon this point as to induce the court to interfere on that ground. The true question was, whether they were peculiarly liable to the *perils insured against. Formerly, skins and hides were not noticed in this part of the memorandum. (7 John. 385, 386.) They were afterwards introduced by name, because not perishable in their nature. (Vid. Ph. on Ins. 486.) Are furs more so ? They are always very carefully secured. The legal construction could - not be varied by the conversation with Boberts, admitting him to have had full power. You cannot alter a contract by parol evidence ; especially a written agreement. (2 John. 226.) This is the ordinary case of attempting to vary a written contract by parol evidence. Beside, the opinion of Boberts, (and the evidence offered was no more,) as- to the construction, can have no manner of effect. But Boberts should have been sworn; the evidence offered on this head was mere hearsay. Uor was his authority shown, to fix the understanding of the parties as to any part of the policy. A misrepresentation of facts is another thing. This is not, as supposed, the case of a latent ambiguity. The word itself is capable of a definite meaning. It is not like a devise to John Smith, generally, there being many of that name. The ambiguity there arises dehors the instrument. In a case where the word itself is equivocal, you must get at the meaning as you can. The negotiations of the parties, though in writing, cannot vary the effect of the policy. (Phil. on Ins. 8.) The evidence touching the difference of premium, was inadmissible. The defendants had no right to couple the acts of other offices with those of their own. G. Griffin, in reply. The insurance was on fur, which, in itself, when off the skin, is an article of merchandize. The cargo was fur skins. There is, then, a difficulty with the plaintiffs, which can be got over in no other way than by showing that fur means fur skins. But when they have established this, we contend that they come directly in contact with the memorandum, which excepts skins and hides; not merely hides, which are skins used for leather ; but skins in the broad acceptation of the term. It is *for gentlemen to convince the court, that bear skins, &c., are not skins. Look at the dictionary and there is no doubt. So in common parlance. It then remains to show they have acquired a different signification. For this, gentlemen have nothing to rely on but the verdict of the jury. The judge charged them to give a different verdict. I have no disposition to deny due weight to the verdict; but the court cannot avoid perceiving a very strong inclination in the jury against the underwriters; and nothing is more usual than to reverse such verdicts. The usage set up should be most clearly shown. Unless a commercial meaning, fixed, definite, and certain, be established, it should not prevail. It is like proof to establish a custom, which is to operate as an exception to, and in derogation of the common law. Ho two of the seven witnesses, sworn on the part of the plaintiffs, agree in every particular. Mercantile usage can only be set up when it has existed a sufficient length of time to be known. (Smith v. Wright, 1 Caines, 43 to 45.) It then, and not till then, is considered as incorporated into the contract. Here is nothing from which we can conclude that the terms were used by the parties in a sense differing from their ordinary acceptation. ¡Neither the jury nor the court have any right to make contracts; but only to interpret them. In doing this, the plain grammatical sense must be adopted. The onus of establishing a different one lies with the plaintiffs. The criteron is, what did the parties mean ? In what sense did the assured mean to use the term ? All the insurance companies understood the term skins in its .ordi nary sense. Companies will insure memorandum articles much cheaper than others, because they are exempt from small averages. I ask whether we are not called on to pay a loss for which we never received a premium ? In the cases stated, of deviation from ordinary meaning, there was no doubt as to the proof. And the very fact that we took only 2 per cent, while 31-2 was paid on non-memorandum articles, shows the intent. Again; it must be shown that all the articles in the invoice fell under the denomination of fur skins. Here are 7 or 800 bear skins; here are wolf and panther skins. The jury made us pay for all. The word in the insurance is fur; and all the witnesses agree that the word fur skins by no means includes every description of skins in the invoice. If there be a mistake as to any one description of skins, or any one skin, there must be a new trial. Many .of these skins come under the word peltries, which is the term opposite to furs. Racoon skins come under that denomination, as is shown by a balance of proof. The plaintiffs’ prices current contradict the witnesses; and a price current produced on our side excludes bear skins from the class of furs. What was said at the time by Roberts was clearly important ; and indeed conclusive on the question of intention. The authority of Roberts has been recognized by the plaintiffs, who have adopted his acts ; and must take them altogether. But it is not a question of authority. It is a question of intention. An agent, however, may not only do the principal thing; but everything incidental to it. (Fenn v. Harrison, 3 T. R. 757; 4 id. 177, S. C. Livingston v. Delafield, 1 John. 522.) (gentlemen .would confine us to the policy. But by what authority do they give parol evidenoe ? If they may do so, may we not do the same ? rule is universal, that you may, by this evidence, do away a doubt which is raised on the other side by the same kind of evidence. The several authorities which I cited at the opening are in point. [MAJORITY — Curia.] Curia. The insurance was on fur. The title of the invoice was furs; under which were detailed bear and racoon skins, opossum, deer, fine fisher, cross fox, martin, wild cat, wolf, wolverine, panther and cub skins. The memorandum warrants skins and hides, and all other articles perishable in their nature, free from average unless general. The loss was not absolutely total; though the goods in question were so much injured in consequence of the wreck or stranding of the vessel, as to warrant the ^abandonment. This will not, however, entitle the plaintiffs to recover, if the subject insured is within the memorandum; for it is well settled, that, in such a case, to subject the underwriters, the loss, ii from sea damage, must be total in fact. (Phil. on Ins. 487, &c., and the cases there cited.), It is contended that the goods are covered by the memorandum ; 1. as being with the generic term, shins; or, if not, then, 2. within the clause, “ all other articles perishable in their own nature.” 1. There can be no doubt, that, taking the words skins and hides in their largest sense, they include every article of the invoice. But, to obviate this difficulty, which both parties seem to have been fully aware of, the plaintiffs offered evidence that, by the understanding of the trade in the city of New York, the articles are not considered to be within the terms skins and hides; skins being those where the skin constitutes the chief value, and furs were the value is constituted by the fur. It was conceded, both at the trial and at bar, that the policy might be thus explained by showing a known usage of trade, as it is expressed in Coit v. The Com. Ins. Co., (7 John. 385, 390.) But it was contended that the offer, and the evidence which followed, were too narrow; being confined to the particular trade in fur or fur skins ; whereas the usage should be of trade generally. case was cited; nor do we think the argument warranted upon principle. - The phrase “usage of trade,” implies a restriction to that class of merchants who deal in the article. Beyond that circle there can be no usage, such as was sought to be established. To sustain the objection, would, therefore, be at once to overrule the cases which allow a usage to be proved at all. The evidence was properly received. All the witnesses for the plaintiffs, who were traders in fur, of longer or shorter, standing, and to a greater or less extent, concur in the general and leading distinction, that skins, valuable chiefly on account of the fur, are, in the language of the trade, called fur; and that skins is a term appropriated to those which are valuable chiefly for the *skin. The word “hides” has been laid out of view as a term confessedly inapplicable to fur skins. The witnesses, when examined as to particulars, ran into some apparent discrepances ; but we think the judge was clearly right, in deciding that the evidence should go to the jury; and in refusing a nonsuit. The witnesses on the part of the defendants had generally been officers of insurance companies. One had been an insurance broker. So far, though well qualified to testify to the understanding of insurers, they were clearly not so well skilled as the plaintiffs’ witnesses in the nomenclature of the trade. There was one of them who had also been a dealer in fur. With the exception of this witness, none of them pretend an ability to speak much beyond the insurance offices. So far as their knowledge extended, they concur in supposing that the goods in question were covered by the term skins. Most of the witnesses appear to have been cross-examined; probably to an extent which we cannot see, much less appreciate, upon paper. It must be borne in mind, however, that we are not called upon to pronounce merely what conclusion we might have come to as jurors. All we can do is, to examine the evidence; and if it be such as plainly not to warrant the verdict, we ought to grant a new trial. But the question being confessedly proper for the jury, we cannot undertake to weigh the testimony in nice scales. When a number of commercial men concur in stating that a word used in their trade has acquired a certain sense, we cannot overturn a verdict founded upon such evidence, merely because they have given some particulars and illustrations disagreeing, either partially or wholly, with their general statement. Their credit has undergone the constitutional test. Notwithstanding the charge of the judge, the jury may have" thought the case a very clear one. We , , . ,n were appealed, to on the argument by a very imposing illustration; and told that, to sustain this verdict, we must run í¿t0 the solecism of holding that bear skins are not skin's. Yet it is very easy to conceive how the" fur skins even of *bears may have acquired a technical commercial meaning. The enumeration in the invoice is of various classes of animals which are hunted in our northern forests, as valuable chiefly on account of their fur: (Ed. Encyclop. Am. ed. tit. Canada.) Others áre sought inainly for the use of their skins. The former áre the object of the American fur trade; and their skins, especially those used about garments, have come to be synonymous with fur in the popular sense. (Eng. & Class. Dict. Fur, ed. 1813.) The term seem thus very naturally to have acquired á sense among men engaged in this article of commerce, contra-distinguished from, and excluding the application of, the generic term skins. The testimony of the plaintiffs’ witnesses whs corroborated by several New York prices current, in which the kind of goods in question were ranked as furs; and invoices in the fur trade were spoken of at the trial as giving them the same rank. It is said the technical meaning should be clearly established. Be it so. Though we may think it clearly established in this case, we do not see enough to prevent a jury from coming to that conclusion. They must have been very strongly impressed with the plaintiffs’ evidence, or they would not have dissented from the charge of the judge. Insurers on furs are bound to know the import of the word, among men trading in that article. 2. The remarks made as to the weight of evidence, apply with still greater force, to the other question of fact decided by the jury ; that is, whether these furs are an article perishable in their own nature. Some of the witnesses for the plaintiffs spoke very strongly on this subject. They put fur skins on nearly the same footing with cloths. It is difficult to fix the precise extent of this clause in the mefndrandum. Taken in its broadest latitude, it covers everything. It was probably intended of those articles not particularly enumerated, which are liable to perish of themselves, in the course of the voyage, without any external injury. *We are not warranted in disturbing this verdict, on the ground that it is against the weight of evidence. The defendants offered to prove that Roberts, who effected the policy as agent of the plaintiffs, urged the taking of the risk at low premium, on the ground that the articles would be free from particular average. This evidence was clearly inadmissible. In the first place, it was no more than the hearsay opinion of a third person. It was not a stipulation. It was not the representation of a fact. At most, it was the expression of an opinion as to the meaning of the memorandum. It is certainly not within the power of agent to fix by his opinion the meaning of a policy which he is authorized to effect. The plaintiffs, it is true, have adopted his acts; but not such a legal construction of them as he may have given, though at the time of executing his power. His opinion was not a part of the res gestee. It was said a latent ambiguity, being created by parol evidence, may, in all cases, be removed by parol. Hearsay, however, is no evidence. If the defendants wished to avail themselves of Roberts’ opinion, they should have sworn him. It is not necessary to say, whether such an opinion coming from the plaintiffs themselves might not, under the circumstances of this case, have been admissible. Perhaps it would, if expressed at any time, as weighing upon the question of commercial meaning, or the sense in which the memorandum was in fact understood between the parties. (1 Mass. Rep. 11, 12.)' But if this be so, it does not follow that the unsworn opinion .of a third person could not have any weight. The offer to prove insurances at a higher premium on non-memorandum articles, for the same voyage, at other offices, and that insurance offices commonly charge a higher premium on these, was properly overruled. It would not go even to show the understanding of this particular com- ° 0 t pany. The charging of a higher premium elsewhere, might have been the very reason why the plaintiffs made insurance at the office of the defendants. The custom of this office was not proposed to be shownand if the offer had been made, it would have gone merely to their own * understanding; not that of the plaintiffs, or of the trade generally. An inquiry into the relative amounts of premium any where, could determine nothing to the question. The judge being right in his legal decisions; and there not being, in our opinion, a preponderance of evidence in favor of the defendants sufficiently strong to warrant setting aside the verdict as against evidence, a new trial must be denied. ¡New trial denied. In respect to the quality or character of a usage, admissable to influence the construction of a contract of any sort, (for the rule in this respect seems to be the same wlaether the contract be written or verbal, sealed or unsealed,) it must appear to be so well settled, so uniformly acted upon, and of so long a continuance, as to raise a fair presumption that it was known to both contracting parties, and that they contracted in reference to, and in conformity with it. See the cases supra. Also Eager v. The Atlas Ins. Co., 14 Pick., 143, 4, per Wilde, J., Snowden v. Warden, 3 Rawle, 101, 107. Smith v. Wright, 1 Cain. Rep. 44. Van Hess v. Pacard, 2 Peters’ Rep. 148. Loring v. Gurney, 5 Pick Rep. 16. Renner v. Bank of Columbia, 9 Wheat. 581, 584, 5, et seq. Lawrence v. M’Gregor, 1 Wright’s Rep. 192. Kendall v. Russell, 5 Dana. 501. Barksdale v. Brown, 1 Nott & McCord, 517. Barber v. Brace, 3 Conn. Rep. 9. Lawrence v. Stonington Bank, 6 Conn. Rep. 529. Paull v. Lewis, 4 Watts’ Rep. 402. Thomas v. O'Hara, 1 Rep. Const. Ct. So. Car. 308. Collings v. Hope, 3 Wash. C. C. Rep. 149. Hayward v. Middleton, 3 McCord’s Rep. 121. And whether such is the case with regard to the usage in question, must generally be tried like other matters of fact, by the jury, if there be one. See Heald v. Cooper, 8 Greenl. 33. Williams v. Gilman, 3 id. 276. Rushforth v. Hadfield, 7 East, 224. Gibson v. Culver, 17 Wend. 306, 7, 8. The usage need not he general. Usages of particular classes, and peculiar to certain localities, have been freely received. See Cowen & Hill’s notes to Phillips’ Evidence, pt. 2, p. 509. Its antiquity, moreover, is of no importance, further than as a cireum'stance in aid of the main point, which is, to show that the parties knew of the usage, and intended to adopt it as the law of their contract. Per cur. in Thompson v. Hamilton, 12 Pick. 425, 428, 9. Kendall v. Russell, 5 Dana’s Rep. 503. We frequently meet with general propositions like the following—“a usage must be reasonable”—and “ can never he received to contradict a settled rule of law.” See Frith v. Barker, 2 John. Rep. 335. Eager v. The Atlas Ins. Co., 14 Pick 141. Homer v. Dorr, 10 Mass. Rep. 26. Henry v. Risk, 1 Dall. 265. Bowen v. Jackson, Whart. Dig. ed. 1822, p. 252, § 358. Stoever v. Whitman, 6 Binn. 416. Rankin v. American Ins. Co., 1 Hall’s Rep. N. Y. S. C. 619. Brown v. Jackson, 2 Wash. C. C. Rep. 24. Winthrop v. The Union Ins. Co. 2 id 9. Barksdale v. Brown, 1 Nott & McCord, 517. A verdict which is clearly against evidence will he set aside and a new trial granted. Wells v. Waterhouse, 9 Shep. 131. Corlies v. Little, 2 Green, 373. Munn v. Gairdner, 3 Brevard, 31. Hudson v. Williamson, 3 Brevard 342. Byrnes v. Alexander, 1 Brevard, 213. M’Bride v. Whitehead, Geo. Decis. Part 1, 165. Childress v. Stone, Geo. Decis. Part II. 157. Jenkins v. Whitehead, 1 Smedes & Marsh. 151. Scott v. Brookway, 1 Mis. 61. Wait v. White, 5 Pike, 640. Gibson v. Gibson, 9 Yerg. 329. Cassels v. The State, 4 Yerg. 149. M’Coy v. Martin, 4 Dana, 580. Tiffin v. Forrester, 8 Mis. 642. Shobe v. Morris, 6 Mis. 489. Yale v. Yale, 13 Conn. 185. Brown v. Handley, 1 Leigh, 119. Mahon v. Johnston, 1 Leigh, 317. Brugh v. Shanks, 6 Leigh, 598. Mayer v. Wiltberger, Geo. Decis. Part II. 20. Supra, 236. Where a variety of testimony is fairly submitted to the jury, and no instruction asked of the court, or question of law raised, a new trial will not be granted unless the preponderance of evidence against the verdict is very great. Kellogg v. Budlong, 7 How. Miss. 340. Ellzey v. Stone, 5 Smedes & Marsh. 21. Yarborough v. Abernathy, 1 Meigs, 413. Perry v. Smith, 4 Yerg. 323. Sellars v. Davis, 4 Yerg. 503. Pettitt v. Pettitt, 4 Hump. 191. Grubb v. M’Clatchy, 3 Yerg. 442. Harbour v. Rayburn, 7 Yerg. 432. Martin v. Withington, 4 Mis. 518. Wilson v. Burks, 8 Mis. 446. Rennick v. Walton, 7 Mis. 292. Lowry v. Orr, 1 Gilman, 70. Todd v. Boone County, 8 Mis. 431. Bagshaw v. Dorsett, Geo. Decis. Part II. 42. Davis v. Hale, Geo. Decis. Part II. 82. Pendleton v. Mills, Geo. Decis. Part II. 166. Bonds v. Gray, Geo. Decis. Part II. 136. Walker v. Tatuum, Geo. Decis. Part II. 161. Wilson v. Natioris. 5 Yerg. 211. Knight v. Mantz, Geo. Decis. Part I. 22. Irwin v. Morell, Dudley, Geo. 72. Flourney v. Coxe, Dudley, Geo. 5. Faber v. Baldrick, 3 Brevard, 350. Swipes v. Remourssin, 2 Brevard, 33. Lavall v. Cromwell, 3 Brevard, 463. Brugh v. Shanks, 5 Leigh, 598. Bank v. King, 2 Green, 45. Jackson v. Packer, 13 Conn. 342. Stanley y. Whipple, 2 M’Lean, 35. A verdict clearly against evidence will he set aside, and a new trial ordered. Conrad v. Williams, 6 Hill, 444. It will he granted in an action on a policy of insurance, where the jury has found for the plaintiff but it appears from the evidence, that the vessel was not seaworthy. Mumford v. Smith, 1 Cai. R. 520. It will be granted where the weight of evidence is in favor of the applicant, and it appears that justice has not been done. Jackson ex dem. Le Roy v. Sternbergh, 1 Cai. R. 162. A I'.ew trial will be granted where the former verdict was contrary to evidence. Hart v. Hosack, 1 Cai. 25. Where there is room for the least criticism upon the import of the words, it is properly a question for the jury, whose decision is conclusive. Ex parte Bailey, 2 Cow. 479. A verdict will not be set aside as against evidence, unless it be decidedly against the weight of testimony submitted to the jury. Jackson v. Loomis, 12 Wen. 27. (N. Y. Dig. p. 599, tit. New Trial)