J. and S. Watson against Delafield

*J. and S. Watson against Delafield. If an assured, having written several letters ordering insurance, and transmitted them by different conveyances, arrive, after a knowledge of a loss, with one of the letters, at a port from whence it is forwarded by the post, ho is bound to countermand the order by the same mail. On a motion to set aside a verdict, as not warranted by the facts, the court will not receive testimony or affidavits to supply what was deficient at the trial, in order to prevent a new investigation, unless the testimony be incontrovertible in its nature, such as a record, or the like. If the testimony be for the purpose of affording further inquiry, the court will receive it. On a policy of insurance, on 13,600 dollars, in doubloons, at and from Kingston in Jamaica to Baltimore. The case and arguments embraced a variety of points and facts, but as the decision turned on one principle only, it would be.useless to detail more of either than is applicable to the judgment. From the evidence it appeared that Andreas Finkin, on whose account the insurance was affected, wrote, on the 16th of August, 1801, a letter from Kingston, addressed to Mr. Stouffer, of Baltimore, his partner in this transaction, desiring insurance against all risks, to be effected on eight hundred and fifty doubloons on board the Harriet and Ann, Rhodes master from Jamaica to Baltimore. Duplicates . and triplicates of this letter were made, but by what vessel they were sent, or through what post-office they passed, was not shown, though it was proved they both arrived in Baltimore on the 7th of October following. As to the original, that was put on board a vessel called the friends, bound to Boston. After this Finkin embarked, with his money, in the Harriet and Ann, for Baltimore, as insured, but she, while on her passage, sprunlc a leak, in consequence of which she was abandoned by Finkin and her crew, all of whom were taken on board a ship named the Lucy, leaving the Harriet and Ann water-logged, so that she, with the money on board, in all probability foundered in a gale of wind. which shortly after came on. Soon after being taken in by the Lucy, Finkin was heard to say “ he was afraid the Harriet and Ann was not insured, though he had twice written to Mr. Stouffer for that purpose.” A few days after this they fell in with the Friends, beating up for Nor*folk, in distress, and the Lucy being destined to New England, Finkin and Rhodes quitted her for the Friends, in which they arrived, on the 30th of September, at Norfolk, which is a regular post town. On the 1st of October the master of the Friends delivered his letters into the post-office at Norfolk, and with them, as it would seem, the .letter of Finkin, ordering insurance. This appeared from its being proved that the post from Norfolk arrived at Baltimore in seven days, and from one of the letters for insuring being received on the 7th of October, marked, “Norfolk, Shp. 19.” While at Norfolk, Finkin wrote a letter to Boston, *dated the 1st of October; on the 6th he joined with Rhodes in a protest, and after remaining there seven or eight days, without writing to his correspondent in Baltimore, he at length hired a pilot-boat to take him there, but, from adverse winds, could, after beating five days, reach no further than Fell’s Point, from whence he immediately despatched to Mr. Stouffer a letter, informing him of the loss of the Harriet and Ann, which arrived at Baltimore on the 14th, and was the first information of the disaster, given to, or received by, Mr. Stouffer, who had, on the 8th, written to the plaintiffs for the present insurance, which was effected on the twelfth. Upon this testimony the judge charged the jury that in point of law, it was not incumbent on Mr. Finkin to have written from Norfolk, countermanding his order for insurance. The jury having found for the plaintiff, the application now made was to set aside the verdict for misdirection, and because Stouffer knew of the loss when he gave directions to insure Hoffman, previous to entering into the argument, offered some affidavits and papers, agreed to be read in some other suits on the same policy, should a new trial be ordered in this, and insisted on their admissibility, though making no part of the case, because they tended to supply defects in the testimony upon points in which the defendant rested on the insufficiency alone. He argued that these ought to be received, because the application was to the discretion of the court, and if they were satisfied, from the documents adduced, that the facts disputed must be established, it would be useless to award a new investigation to establish them. The practice of the court, he said, was in conformity to'his request. ' In Duncan v. Du-bois, January term, 1802, it became necessary on the trial to show a private act of congress. The common statute book was read, and a verdict found. Application was made to set it aside for admitting improper evidence Between the trial, and the time of making the motion, an exemplification had been received, and on being produced a new trial was refused, because the defect in testimony was supplied. In addition to this authority the English books furnished similar determinations. In Dyster v. Mundell, 1 Bos. & Pull. 427, an affidavit was received, falsifying the testimony on which a verdict was obtained, though the court observed it was unsual so to do. In Hibbert v. Garter, 1 D. & E. 747, after argument, and a new trial refused, an affidavit was ^received, and the former determination reversed. Therefore the court would certainly receive these papers to support a verdict, in which justice had been done. As it is done to show testimony, so it ought to establish what is questioned. Hanson, contra. This attempt is not only novel, but too dangerous to be tolerated. It is one thing to show newly discovered evidence, and another to take away out right of rebutting. Kent, Ch. J. stopping Harison. There is a great difference between offering evidence or affidavits to open an inquiry, and offering them to shut out investigation. The cases cited, from the decisions of Westminster Hall, >vere of the former description; the present application is to close the door against the admission of new light. As to the determination in Duncan v. Dubois, the document there adduced plainly established that no further elucidation could be shown. It could not have been controverted by other testimony. But we are now called upon to prevent controverting that which is controvertible. The papers cannot be received. Spencer, J. There would be extreme danger in permitting a party to thus read affidavits, which the opposite, side has had no opportunity to rebut, and thus decide the cause ex parte, when, on a trial, every thing contained in the depositions might be disproved. Were wc to grant the application, it would be a precedent for our hearing, on all subsequent occasions, what ought to be offered only to a jury. Tompkins, J. Suppose witnesses should be now ready to disprove every thing contained in the papers offered, are they to be shut out ? The application must be refused. Pendleton, for the defendant. When Finkin, on the first of October, wrote to Boston, he had the same opportunity of writing to Baltimore, and his silence arose only from a fear that the insurance was not effected. He might not, perhaps, have been able to recall his letter ordering insurance ; but as he was on the spot from whence it was sent at the very time when put into the post-office, and then was apprised of the loss, it was his duty to have forwarded a countermand. Wherever a party has, in good faith, directed insurance, if, before it be carried into execution,- he know a loss has taken place, he is bound to revoke hia commands, when by ordinary means it can be done. Nay, if he possibly may know it, he is equally under an obligation so to do, and it is this principle which has occasioned the regulations of the 38th (Qucere, 30,) article of the ordinances *of Louis XIY. that persons living within any distance of a port, at which an account of loss arrives, shall be presumed to have obtained knowledge of that fact, -within such a time as the news would have reached them, at the rate of a league and a half per hour, and if the policy be effected within that period, it is void, on account of the presumed fraud! Suppose Finkin had arrived safely, and, on his arrival, knew the letter with orders for insurance was, at the time when writing to Boston, going off in the same post, would he not have written to countermand his insurance, and save his premium? Doubtless he would. The same activity is required to be exerted in favor of the insurer, and therefore when a direction for insurance can, after a knowledge of loss, be countermanded, previous to its being carried into execution, it must be done, or it amounts, in law, to a fraud. 2 Emer. 137, citing Le Guidon, e. 4, and the ordinances of Louis XIV. The same doctrine is found in the Scotch and English authorities. Grieve v. Young, Millar, 65. Fitzher-hert v. Mather, 1 D. & E. 12. Finkin knew his letter for insurance was on board the ship in which he arrived. He knew this letter must necessarily, and according to the act of congress, be put by the captain into the post-office at Norfolk; he ought, then, to have accompanied it with one giving an account of the loss. Riggs and Hoffman, contra. The evidence, as stated in the case, does not establish that Finkin wrote to Boston by the mail. He might have sent his letter by a vessel. But it is a mistake to say he was bound to write. There is no settled principle requiring it of an assured, under circumstances like these. The authorities cited from Millar, and D. & E. only show that if a single letter ordering insurance be sent off after knowledge of a loss, it is in law, if there be no other order, fraudulently transmitted. But here three letters were written and sent off by three different conveyances, long antecedent to the disaster. Finkin’s arrival at a port where only one letter was, did not give him a power over the others. They were beyond his control. "We contend that the act by which insurance was directed, having been executed, and the letters fairly sent on their rout, the assured had a right to be passive, and take his chance. He had not, as in the cases cited, the power to stop all the orders. The reasonings of the French authors, as to fraud in policies, are not applicable to our code. By their ordinances, certain acts are required to be done; when they are omitted, their law raises the presumption of fraud. *With us fraud is never to be presumed; it must be found by a jury. With them it is matter of law ; with us matter of fact; and the very verdict, therefore, is proof against its existence. Besides, these very ordinances have been found so impolitic, that it has been necessary to frame a particular clause to obviate their baneful effects. The French policies, therefore, run “ good or bad news not to affect.” As there is not, by our law, any fraud to be presumed from the circumstances of the case, it was matter for jury consideration, and they have determined. Harison, in reply. Great as the power of the jury is in itself, and properly and constitutionally great as it ought to be, yet I know that this court exercises a control over them, whenever they have, from the facts before them, drawn wrong conclusions. Those facts upon principles of good faith, which peculiarly govern in cases of insurance, made it a legal duty to give information of the disaster instantly on arriving, as the order for insurance, then known to be going from the very spot where Finkin was, would otherwise induce a belief the vessel was in safety. In the casé cited from Millar, the loss was not known till an hour after the time at which the mail usually departed; yet, because no endeavor was made to countermand, and it was proved- that it might have been effectually made, the policy was held to be void. Had Mr. Finkin written on the first day of the month, the letter would, by the course of the post, have been received in Baltimore on the 7th, and thus have prevented the order being sent off on the 8th. It is no answer to say, Finkin might not have been acquainted with the regulation at the post-office, or even that Norfolk was a post town. As it was his duty to write, it was his duty also to inquire. But the presumption of law is, he was acquainted with the course of business relating to a transaction he was bound to perform. When doubtful whether the insurance- was effected or not, it was a point of good faith to communicate-the loss. [MAJORITY — Livingston, J.] Livingston, J. delivered the opinion of the court. It is contended on the part of the defendant, either that Stouffer, when he gave the order for insurance, knew of the loss of the Harriet and Ann, (in which case the policy would certainly be void) or that Finkin might, and ought to, have communicated to his partner information of the accident, immediately after his arrival at Norfolk, because this would have prevented the insurance, and that his neglecting so to do was a constructive, or *a positive’ fraud, either of which will equally vacate the insurance. As to the first allegation, that Stouffer knew of the loss when he wrote his letter of the 8th October, 1801, we are all satisfied that it is unsupported by any testimony whatever. There can be no doubt that he had no intelligence of the misfortune until the 14th of that month, and that he acted with perfect good faith in ordering the insurance. There is no room, therefore, to impute to him fraud or impropriety. Were the cause relieved from every embarrassment but what arises from his agency, we should, without difficulty or hesitation, say that justice has been done, and refuse a new trial. The conduct of his partner, however, is not so free from exception. If it has' not been such as the defendant had a right to expect, or the rules of law imposed, not,only be, but all those concerned with him, and who are of course answerable for his acts or negligence, must suffer. The case, as it respects the behaviour oí Fin-kin, is not without difficulty. If his letters of the 16th August, directing insurance, were written in good faith, and sent in season, he might suppose that as he had fairly run the risk of paying a premium, it was not incumbent on him, even after a loss, to take any step to his own prejudice. In this view of the subject, perhaps no actual fraud is to be imputed to him; nor do we mean to say that in all cases whatever, it is the duty of a party who has directed an insurance to send immediate notice to his agent of every disaster which happens with a view of defeating orders given in sincerity, merely because it is possible thb countermand may arrive in season. That question is not now before us, and when it occurs will require very serious deliberation. We are now called on to say whether, if a person, having sent orders to insure from a foreign country, shall afterwards'arrive in the neighbourhood of the port to which his letters are transmitted, and on .board of a vessel in which he knew one of them to be, under apprehensions also of insurance not being effected, he be not bound to give his agent information of a loss by the same mail which he must have known would carry his letter ? The counsel for the defendant have referred us to the 38th article of the celebrated “ ordonnance de la marine” of Louis XIV. to Pothiér on Insurance, c. 1, s. 24, to Valin, vol. 2, 94, to 2 Emerigon, 137, and to Le Guidon, c. 4. This article of the ordinance which has been cited “ annuls *all insurances made after the loss, or or arrival of the property assured, if the assured knew or might have known of the former, or the assurer of the latter, before the signature of the policy,” The ordinance then defines what shall amount to presumptive evidence of such knowledge; but, without investigating the propriety of this regulation, it is sufficient to say that this rule, in the extent bere prescribed, bas not been adopted either in England or in this country. It is not sufficient that the assured might have known of the loss. It must be proved that be did know it: and in many cases he may even know of the loss at the time of subscribing the policy, and yet the insurance be valid; as in the present case, if the policy bad been subscribed on the 30th of September, 1801, it would have been effectual, although Einkin then knew of the loss. But little light, therefore, will be reflected on the present question, either from this ordinance or the commentaries on it. Emerigon, it is true, in treating of insurances made by agents, (vol. 2, p, 148,) declares a policy void, “ if the principal, being informed in time of an accident, do not revoke his order.” In conformity with this principle we find a decision in the court of session, in Scotland, reported by Millar, p. 65. It is the case of Greive against .Young. On the 10th of December, 1799, Greive wrote to his correspondent in Edinburgh to insure his vessel. This letter was sent on the evening of the 10th to the Press, five miles off, on the London road, where it would be taken up by the post early the next morning. The letter arrived at Edinburgh about six o’clock in the afternoon of the lltb, and insurance was effected. At ten o’clock on the morning of the 11th, the ship sunk in the sight of Greive. The post left the Press usually before seven in the morning, but oftentimes as late as nine, ten or eleven, and sometimes, though seldom, not before one or two in the afternoon. On the 11th of December the post did not leave it till near ten. It was determined that Grieve ought, by express, to have informed his correspondent at Edinburgh of the disaster, to prevent insurance, as he had reason to think an express would have reached Edinburgh in time for that purpose. The cause being removed into the court of session, they thought it was not incumbent on Greive to send an express, but being satisfied that he had time to countermand the insurance iq the ordinary course of the post, and that it was his duty tc have done so, judgment was given for the underwriters. In the case of Fitzherbert v. Mather, in the king’s bench *of England, an insurance was held not recoverable because the agent of the assured, who had written him a letter, on the 16th September, 1782, informing him of the sailing of a vessel in which he had shipped certain property on his account, on which letter insurance was effected, neglected to send him information of her loss, which came to his knowledge the next morning. “ The agent,” says Lord Mansñeld, in delivering his opinion in this cause, “ acted honestly when he wrote the let ter; but on the 16th, at night, he heard the ship was on shore, and the next morning he knew that she was lost. The post did not go out till the afternoon of that day, therefore he had full opportunity to send an account of the loss.” This last decision, it must be confessed, bore extremely hard on the assured, because Thomas, being his agent only for the purpose of making the shipment, it might well bo supposed, by himself and others, that his agency ceased as soon as the goods were on board, and he had sent on the invoice and bill of lading. It proceeds, however, as well as the case from Mil 1 ar, on the principle relied on by the defendant, that orders for insurance must be revoked, after a loss, where there isa probability the revocation will arrive in time. Nor will this appear unreasonable, when we recollect how much an underwriter is in the merchant’s power. lie may lose the chance of insuring, not only by hearing himself of the safe arrival of the property, but, is exposed to every possible diligence and activity, which interest will inspire, and which, of course, will be exerted by the other party to prevent an insurance in "such an event. Not only the mail, but expresses, will be resorted to, tc convey the important intelligence. If, then, a person be permitted, in this way, to prevent an insurance, or an order given, in good faith, and thus deprive the assurer of a premium, there is no hardship in imposing on him a reasonable diligence, in communicating a disaster, so long as sucb information may very probably be expected to arrive in time. He should not be allowed to be active to save a premium, and passive in obtaining an indemnity against a loss, which has happened early enough tobe communicated, by ordinary diligence, to the underwriter. If, in the present case the Harriet and Ann had arrived safe at Norfolk on the same day with the friends, no one can doubt that Mr. Finkin would have tried to stop his letter in transitu, or would immediately have despatched an express to Baltimore or at least have written by *the first mail; in which case, insurance would not have been made. This arriving in a vessel on board of which was one of his letters directing insurance, and, under apprehensions that none was effected, are circumstances which have very great influence on our decision. He had reason to believe, when he arrived at Norfolk, that no insurance was made, and must therefore have known that it was in his power to prevent it. It cannot be believed he was unable to get a letter into the post-office, at that place, and still less, that he was ignorant that his letter to Mr. Stouffer, which was on board the Friends, would be lodged there by the captain. There is something said of his being sick part of the time, but it will be remembered, that on the 1st of October, he wrote to Mr. Merry, and on the 16th, he was on shore. It was as easy to write to Mr. Stouffer as to Mr. Merry, and if too unwell to go on shore, he might easily have sent it to the post-office. It is not very clear that he might not have obtained from the captain of the Friends possession of his own letter to his partner, if he had asked for it. Perhaps, however, this could not be done, as masters, who arrive in the United States, are, by law, to deliver to the postmaster all letters which are brought in their vessels. Be this as it may, Finkin must either be presumed conusant of the law on this subject, in which case he would know that his letter would be put in the post-office, or he must have inquired of the captain what would be done with it, who would have given him this information. His permitting this letter, then, to go forward, under circumstances of this na ture, without taking any one step to counteract its effect, must be deemed, if not a misrepresentation, at least so gross a neglect as to vacate the contract altogether. His silence and inactivity could hardly have been accidental. A designing man would reason, as it is too probable he did, “My other letters may not yet have reached Baltimore; my only hope, therefore, is on the one which will be forwarded by the Captain of the Friends; I will, then, let this go on and say nothing of the accident until it has been acted on.” Such reasoning cannot be endured. It will not help the plaintiff, to say that the other letters, or one of them, might have come to hand. To this an answer has already been given. Mr. Finkin himself thought otherwise, and, at any rate, it was no excuse for letting a letter go on uncontradicted, after the loss was known. If the other letters had miscarried, the insurance *would have been effected on the one thus improperly forwarded. Another answer is, that as this letter did go on, ho should at least have given the underwriters, who were so much in his power, a chance of receiving timely information of the loss. Had this been done and insurance affected on either of the other letters, all would have been safe. The principle of the decisions, which have been cited, and which we here adopt, will prevent frauds, will place the assurer on a more equal footing with the merchant, will produce good faith in transactions of this nature, and not leave it in the power of a crafty or designing man, to make his own advantage, to the prejudice of a third person, of every circumstance which may happen, be it disastrous or otherwise. Upon the whole, therefore, after mature deliberation, we think the judge who tried this cause was mistaken in his charge, and that it was, under all the circumstances of this case, incumbent on Finkin to have written to his partner, apprizing him of tbe loss of tbe Harriet and Ann, and that, not baying done so, a new trial must be granted, with costs to abide tbe event of tbe suit. New trial. See this case, 1 Johns. Rep. 150, and the special verdict on the new trial granted in the text, upon which the court ordered judgment for th« defendant.