Vandervoort v. Smith — 2 Cai. 155

Majority

p. 155

Vandervoort and another against P. N. Smith, President of the Columbian Insurance Company.

Headnote

Where a policy is clear, certain, and unambiguous as to the voyage insured, propositions asking the rato of insurance for another voyage cannot be resorted to as representations to show the voyage insured was meant to be restricted to that described in the proposition. An application for a new trial on account of a discovery of testimony must show it to have been discovered since the trial. It is not sufficient to say it has been received since, for its not having been received might be urged as a reason for not trying A copy of proceedings in a foreign tribunal, certified undei the seal at arms of a foreign minister of the kingdom in which the tribunal exists, is not even prima facie evidence, unless it be made appear such minister has the official custody of such proceedings. All transactions from foreign languages must be on oath; one by a consul is of no more validity than by any other respectable person. Admissions in a case are conclusive against the party making them.

Assumpsit on a policy of insurance, at a premium of 27 1-2 per cent, on tbe cargo of tbe schooner Pour sisters, “ at and from New York to two ports on the coast of Brazil."' The printed warranty respecting illicit trade was obliterated, but at tbe foot of tbe instrument the following clause was written: “ It is warranted, that the said vessel shall have •no contraband goods on board, tbat tbe assurers take all risks of seizure, for, or on account of, any illicit or prohi-ted trade, except risk of seizure in port, for or on account of, any illicit or prohibited trade.” The plaintiffs claimed a total loss, averring it to be in consequence of seizure off the mouth of the river Para, by armed vessels belonging to subjects of Portugal.

At the trial, the subscription, interest, loss, due abandonment, and seizure by the Portuguese, at sea, off the mouth of the river Amazon, were admitted. It appeared that the voyage pursued had been from Rió Janeiro, on tbe coast of Brazil, to Para, on the same coast, but about two thousand miles north of Janeiro. The testimony of John Blagge (who was the projector of the expedition) evinced, that its object was to go to Bio Janeiro, and from thence to another port called St. Catharine’s, not more than a feti hours’ sail distant from the former. But this, he deposed, was not, to his knowledge, ever communicated to the defendant ; who, however, on his part, wished to prove that it was, and constituted a material representation, on which ¿he policy was effected. For this purpose he showed 'that the practice of the Columbian Insurance Company was to oblige the underwritten, on all occasions, to commit to paper their applications for insurance, to which written answers were returned. That, in the present case, the following communications passed between the parties : 1. “ What Will the premium be on-dollars, cargo, to be shipped ' on board a good and fast sailing schooner, with an experienced ^captain, at and from this to two ports on the coast of Brazil, (to clear for the Falkland Isles) at and from thence back again, and what will be the Outward premium only, the insurance to be against all risks? New York, 6th December, 1801. M. L. Vander-voort.& Co.” Answer. “Thirty-three and a half per cent, out and home; seventeen- and a half per cent, out only.” 2. “ N. B. One of the ports is where the vessel calls for her return cargo, and is about four or five hours Sail from the other. The schooner is the Four Sisters, Captain Barker.” Answer. “ Twenty-seven and a half per cent, out and home; fifteen per cent, out only.” 8. “ Seizure in port excepted. Warranted no contraband on board. The office take all risks of seizure, for, or on account of, any illicit or prohibited trade, seizure in port excepted, for, or on account of, any illicit or prohibited trade, 15,000 dollars wanted. The New York office have taken 25,000 dollars at twenty seven and a half, at the above clause. The olause in the policy respecting illicit trade, in articles contraband of war, erased before signing, warranted to have no contraband goods on board, the assurers to take all risks of seizure, for, or on account of, any illicit or prohibited trade, except the risk of seizure in port, for, or on

p. 156

account of, any illicit or prohibited trade.” Answer. “ Twenty seven and a half per cent, under the warranty last mentioned.” The defendant established, by several witnesses, that the difference of premium between a voyage to Rio Janeiro and another port within four or five hours’ sail, and a voyage to Rio Janeiro and Para, would be from five to six per cent. To the admission, however, of these written applications and answers, the counsel for the plaintiffs objected, as tending to explain away, by parol testimony, a contract reduced to writing; and the judge directed the jury, that the paper writings above mentioned (which, it appeared, had been in some measure reduced to form since effecting the policy) could not be considered as representations, or any part of the contract, but only suggestions, or propositions, leading to a contract, and therefore to be wholly laid out of view, except for the purpose of showing positive and actual fraud. Upon this charge, a verdict was rendered in favor of the plaintiffs, for a total loss.

The defendant now moved to set this verdict *aside, and grant a new trial, on account of the misdirection of the judge, because the various paper writings were representations containing material facts which had not been complied with; 2. Because the vessel was actually seized in port; 3. Because the warranty against contraband goods had not been fulfilled; and, lastly, on account of newly discovered evidence.

Bogert, for the defendant.

The various propositions, as they have been termed, were, as we contend, representa; tions of the voyage to be insured. This voyage constituted the basis of our engagement. That performed was a different one. A representation is defined “ a collateral statement of facts, on which the “policy is to be effected, and may be by parol, or writing.” 1 Marsh. 134 , 135, 137. It forms no part of the policy, but makes a part of the contract. If a material fact be omitted, the policy is avoided. M‘Dowai v. Frazer, Marsh. 338. The destination to Para was ma

p. 157

terial, because it increased the risk, as is manifest from the difference of premium stated in the case. This, it is settled, ■is a conclusive circumstance to show the representation material. Pawson v. Watson, and Bize v. Fletcher, Dong. 13, Park, 204. It is true, after a representation the assured may change his intention, but then such change forms a new representation, which must be communicated, otherwise the original intention is presumed to continue, nay, must be pursued. Millar, 392, 401, 432. In the case before the court, the voyage described is not contradicted by the policy, and the representation ought to have been referred to, for the purpose of showing it had not been complied with. On the second point, though an admission be made at a trial, yet, if subsequent facts show that it was a mistake, it would be too rigid to tie the party down to his admission. It appears from the proceedings at Para, certified under the seal of the Portuguese minister, received since the trial, that the seizure was for illicit trade, and in the mouth of the river Amazon. This may be held to be in the port of Para, because of the trading which is carried on from the place where the seizure was made. The distance to which a port extends, is no reason for denying it the legal attributes of a port. Hargrave’s Tracts, 46. *And though the seizure was not for contraband, or illicit trade, yet, as the condemnation proceeded on that ground, it is sufficient to prevent a recovery. For, though there be no cause of seizure when a vessel is first seized, yet if any be afterwards discovered, she may be proceeded against on that.

Harison and Hamilton, contra.

It was proved on the trial that the propositions had been filled up in some points after the policy was underwritten. The practice, therefore, of the company is not entitled to much respect. The question is whether this thing, which is called a representation, is to contro the natural import of the words of a policy? By them the assured has it in his power to go to any tw<?

p. 158

ports at bis option. For be that is to do the first act, to determine the object, has invariably a right to elect. Co. Litt. 145. a. If so, and a clear explicit meaning appear on the face of the instrument, the settled rule is, that no paroi testimony, or evidence, aliunde, can be admitted to explain, contradict, control, or extend it. The general authorities to this point are, Gunnis v. Erhart,^[1] 1 Ií. Bl. 289. Meers v. Ansell,^[2] 3 Wils. 275. Bull. N. P. 296, 297. Mease v. Mease, Cowp. 47.^[3] Heñíale v. Royal Ex. Jas. Go., 1 Ves. 317. Hare v. Sherwood, 3 Bro. Ch. Cas. 168.^[4] In Low-field v. Stoneham, 2 Stra. 1261, a devise was to “John Stoneham, and in case of his death, to his wife Susannah.” The devisee outlived the testator, and the defendant, his widow, offered parol evidence to show that the testator, when in extremis, declared he meant the husband should have only the interest, and that the principal, after his death, should go to her if she survived him. But the Chief Justice instantly overruled it. Where the law raises a collateral equity, this maybe rebutted by parol testimony But wherever a legal effect is fully established by the words used, such evidence cannot be received. Preston v. Merceau,^[5] 2 Bl. 1249. So in Ricji v. Jackson,^[6] ,^[7] 4 Bro. Oh. Cas. 514. But where it is resorted to merely to show the consideration of a deed, there it will be received. Filmer v. Gott, 7 Bro. Pari. Cas. 70. Rex v. Scammonden, 8 D. & E. 474. But the writings attempted to be referred to as representations cannot be received. They are mere propositions absorbed in the contract. 5 Yin. Abr tit. “ Contract,” let. Gr. *pl. 26. “ Whore a con tract is reduced into writing, all previous contracts are resolved into that,” Therefore, the definitive agreement, the policy, is to be the only guide. In that there is no ambiguity, either latent, or patent; and consequently, no pretext for recourse to extrinsic testimony. It is only to evince fraud that a representation can be resorted to. The new testimony, on which the arguments rest as to noncompliance with the warranty, and seizure in port, is nothing more than a copy from the office of the Portuguese minister, of a copy of the proceedings from Para, and amounts to nothing. The definition of a port, in the treatise of Lord Hale, de portubus marts, from Hargrave’s Tracts, is applicable to English ports, which take their rise from particular grants and customs, but not to the mouth of the river Amazon.

Pendleton, Hoffman and Gaines, in reply.

We admit the general rule as to the admissibility of parol testimony, against the words of a written contract. It does not, however, apply here: for the evidence adduced at the trial, and which the judge directed the jury to disregard, was not in contradiction of the policy, but perfectly consistent with it. Whenever parol testimony will stand with the words of the instrument, it is to be received. Therefore a representation of neutral goods will, though the policy be general, restrain it to such as are represented. So here, the representation being to two ports within four or five hours’ sail of each other, must restrain the insurance to two such ports as have been represented. As to the papers offered being mere propositions, every proposition for insurance, when acceded to, becomes a. representation, and, as such, is a part of the contract dehors the instrument. This is one characteristic difference between representations and warranties. For when the assured inserts in the policy that which he haa

p. 159

represented, it changes into a warranty. Each, however is a part of the contract, and each to be performed; the-one must be literally, the other may be virtually, complied with. If it was not a part of the contract, there could not be any necessity in the execution of that contract to show it had been fulfilled. As, then, this is to be established,, the representation must be referred to, as a test c f the acts done by the assured, in order to prove *a due performance. Therefore, in PawsonY. Watson, Pawson v. Ewer, and Bize v. Fletcher, it was resorted to, to determine whether the defendants had virtually complied with its contents. It follows, that a representation is in all cases admissible evidence to show the basis of the contract. It constitutes a part of the consideration bn which the defendant engages. The representation and the risk are correlative. When the representation is made, the risk is calculated, and on this risk the premium is founded. It thus becomes the essence of the engagement upon which the insurer undertakes, and falls within the very rule laid down by the opposite counsel, that recurrence may be had to parol testimony, to show the consideration of an instrument. It is equally within another of the positions taken against us. The plaintiffs admit we may refer to it for the purpose ef establishing fraud; we say, then, it was a fraud to state the voyage to be to two ports four or five hours' sail from each other, and then go to two, which are more than two thousand miles apart. The certified proceedings, under the seal of the Portuguese minister, are not offered as a conclusive admiralty sentence, but as evidence of the laws of Portugal, that the seizure was for trading contrary to them, and within a port of that kingdom. On these points, such a document is certainly strong testimony.

delivered the opinion of the court. The great and important questions arising out of this Case are, whether the paper writing produced in evidence ought to be considered as a representation or not, or was admissible

p. 160

to explain the intention of the parties^[2] I have entertained very considerable doubts on the subject; and considering the importance of the case, as it respects the amount of property involved, and the very able and elaborate manner in which it was argued on both sides, it is with considerable diffidence that-I pronounce, the opinion, which, after much reflection and examination, I have formed, and in which the court concur. We think the writing in question cannot be deemed a representation ; neither was it admissible evidence to explain the intention of the parties to the contract. It could be received for no other purpose than to establish a fraud. A representation is de? fined tobe a collateral statement, *either by parol, or in writing, of such facts or circumstances relative to the proposed adventure, and not inserted in the policy, ,as are necessary for the information of the assurer, to enable him to form a just estimate of the risk. If the fact or circumstance appear on the face of the policy, it becomes a warranty and not a representation: it is essential, therefore, that it be of some matter out of, and collateral to, the contract, and makes no part of the policy. It cannot be said that this policy is silent on the subject of the ports to which this vessel was to sail; they are expressly made a part of the contract, and that, too, with all necessary legal certainty. She was to go to two ports on the coast of Brazil. Supposing there had been no evidence whatever offered of any communications between the parties, previous to the signing of the policy, would it have been void for uncertainty ? clearly not: the legal construction, in such a case, would have been to' two ports on the coast of Brazil, at the election of the assured. If the course ol the voyage,-then, be described in the policy with all necessary and legal certainty, this could not be considered a matter collateral to, and making no part of, the instrument. The writing offered to explain it could not, therefore, be

p. 161

received as a representation, within the .rules ofla.w above laid down. This writing must, we think, be viewed in the light of a series of propositions made on the one side, and answers given on the other, leading to a contract to be consummated by the policy, and intended to serve as a memorandum, whereby to fill it up, and must fall within that very salutary rule of law, that where an agreement is reduced to writing, all previous treaties are resolved into that. To admit a loose and almost unintelligible memorandum, which appears to have undergone.some alterations even since the commencement of this very action, in any manner to control the policy,^[2] appears to us to lead to too great uncertainty, especially as it is stated in this case that several personal communications took place between the parties previous to the signing of the policy. There appears to be a substantial reason for giving, the latitude-contained in the policy. The parties contemplated an il: licit trade, and it was not certain the vessel- could enter the port she wished: it was therefore *left open, at the election of- the assured, according.to circumstances. It remains to be examined, whether this writing was competent testimony to explain the policy. It is well observed by Mr. Justiee Blackstone, in the case of Preston v. Merceau, that courts should be very.cautious in admitting any. evidence to supply or explain, written con-'

(a) (a) In Bates v. Grabham,, 2 Salk. 444, a case is cited by Lord XIolt, as decided by Pemberton, Oh. J., that on an insurance .from Archangel to the Downs, and from thence to Leghorn, parol evidence was.admitted to show that it was agreed the voyage should not commence till the .ship came to such a place, and that the policy was avoided according to the terms of the parol agreement. But in Weston v. Emes, 1 Taun.. 117, this case was denied to be law, and the court decided, that parol evidence of what passed at th; time of effecting an insurance, is not admissible to restrain the effect of the policy. Where the terms of a policy are olear and explicit, the court will not heai any suggestion or proof of mistake; as that an insurance .on freight gen» rally, was intended to .cover freight earned.. Chereot v. Barker, 2 Johns Rep. 346 .

p. 162

tracts, and. that they never ought to be suffered so as-to contradict or explain away an explicit agreement. In the case of Meers v. Ansel, the court said, no parol evidence is admissible to substantially vary, alter or impugn a written agreement; neither is it admissible to abate or extend a deed. No ambiguity appears on the face of this policy ; the words arc intelligible, without any aid dehors the instrument. The testimony offered is calculated materially to alter and restrain the policy. As it now stands, the assured had undoubtedly a right to go to any two ports on the coast of Brazil, at their election. If the previous communication on the subject of the voyage is to control the policy, the assured would be restricted to two ports, within four or five hours’-sail of each other. This, considering the nature of the trade they were engaged in, might very materially affect, if not in a great measure defeat, the voyage ; so far as this writing would tend to establish fraud in the assured, the underwriters have had the benefit of it. It was for this purpose submitted to the jury, and their decision upon it ought, I think, to be final and conclusive. I see no marks of fraud to taint the contract: the deduction of the premium from 33 1-2 to 27 1-2 per cent, appears to have been occasioned by reason of the assured’s taking on themselves the risk of seizure in port. This, in a forced trade like the present, was a very great diminution of the risk to be borne by the underwriters.

The voyage contemplated by the assured might have been o Rio Janeiro, and St. Catharine’s, as stated by Mr. Blagge: still they might not wish to be restricted to those places; otherwise it is difficult to conceive why they were not inserted in the policy. They choose rather to have a discretion left them as to the ports, and to which the underwriters must have assented, by subscribing the policy in its present terms. James Watson, and the other witnesses who were examined respecting the premium do not say that 27 1-2 per *cent. was not an adequate premium for the voyage insured. They only

p. 163

spealc of a comparative difference of premium between two voyages, to neither of wbicb were the assured restricted by this policy. For it has not been pretended by the underwriters that they were bound to go either to Eio Janeiro or St. Catharine’s.

The argument of this case has been accompanied with a motion for a new trial, on the ground of the discovery of new testimony. The testimony alluded to is said to be a copy of the proceedings and condemnation at Para, against this vessel and cargo. In order to grant a new trial on this ground, it ought to appear that the testimony has been discovered since the last trial; or that no laches is imputable to the party, and that the testimony is material. In Ihe present case, there are numerous objections against granting the application. It does not appear from the affidavit, that this testimony has been discovered since the last trial, but only that it arrived in New York since that time. From the nature of the evidence, it must have been discovered as soon as the cause of the loss was known, and of course there must have been either a want of due diligence in procuring it, or, if sufficient reasons for the delay could have been shown, application ought to have been made to postpone the former trial. Independent of this circumstance) however, there are objections to the admis sibility of the testimony offered, it not being duly authen ticated. It purports to come through the secretary of state, for foreign affairs, of the kingdom of Porlugal. If if be, as he has contended, a regulation of the government of Portugal, that all judgments and decrees rendered at Para are transmitted to Lisbon, and registered in the department of state, that regulation should have been shown in some authentic way, and the document in question would then appear to come through the proper channel; and, if duly authenticated, might be competent prima facie evidence of what it contains. But nothing appears to show that such is the regulation of the mother country with her colony. This document cannot be considered an exemplification of a judgment. That should be under the great seal; this ia only under the seal of arms, of the secretary of state; neither is it a sworn copy of the original, and- it cannot be received as an office copy, it *not appearing that the secretary of state has officially the custody of'records of this description. The translation of this document from the Portuguese into the English language, ought to have been made on oath; interpreters are always sworn. The translation of a consul, not on oath, can have no greater validity than that of any other respectable man.' But, laying aside all objections as to the manner in which this document is authenticated, we do not consider it material testimony. The purposes for which it is offered are, 1. To show that this, vessel was seized in port, and sp, the loss not within the risks assumed by the underwriters; and, 2. That.she had on board contraband goods, contrary to the warranty of the assured.

In .answer to the first, it is expressly admitted in the case, that she was seized at sea, off‘the mouth of the river Amazon. -This admission ought to conclude the party on this point.

In answer- to the second, the warranty in the policy must.-be understood to relate to goods contraband of war, and not as against the laws of Portugal; for it was well understood between the parties, that the voyage insured was a- forced and illicit trade,, contrary to such laws. The contraband' goods mentioned, in the condemnation must have been understood to be so, in reference ■ only to the laws of, Portugal. The ground of the sentence is stated to be, because the captain advisedly, and deliberately precipitated himself into port to trade, and there by subjected himself .to .the penalty, of the law.of' the 18th March, 1605. The opinion of the court therefore ■ is, that a new trial ought .not to be-granted, and that the plaintiff have judgment on, thp-.verdi.ct.'of the jury.

Postea.-to- the- plaintiffs.-

Footnotes

(a) (a) See Jackson v. Putnam, 1 Caines’ Rep. 358 , and note there.