Miller v. De Peyster — 2 Cai. 301

Majority

p. 301

Miller and Graham against De Peyster and Charlton.

Headnote

If an assured, after capture, appoint an agent to prosecute his claim, such agent after due abandonment becomes the agent of the assured, and a receipt by him of the money for which the property has been sold, will be deemed a receipt by the insurer, who must look to the agent for the amount, and pay the assured his full loss without any deduction. All acts by such an agent, if bona fide, bind the underwriter.

Assumpsit on a policy of insurance on the cargo of the schooner Chance, commanded by Graham, one of the plaintiffs in the cause.

The vessel and cargo being captured by a French privateer, were sold by order of the Spanish Government at the Mantanzas, in the Island of Cuba, whither she was carried, and the proceeds of both lodged in the custom-house oí that place. After this Graham appointed an agent to prosecute his claim, and departed.

The agent thus constituted, entered into a compromise with the captors, by which it was agreed that the money should be released on the captured’s paying all costs and charges, and giving *up one third of the money deposited. This being done the two thirds were received by the agent, who, in answering to the interrogatories, in a commission, acknowledged having the money, and stated himself ready to exhibit the documenta

p. 302

and accounts, with the balance, to any one duly empowered. The question was, whether, as two thirds of the value insured were in the hands of an agent appointed by one of the assured, they could, notwithstanding a due abandonment, recover as for a total loss ?

Harison, for the plaintiff.

Had we not left an agent to manage the affairs of the vessel and cargo, there would, it is allowed, have been no doubt as to our right, but that having done so, and not having staid to prosecute, the claim is taken away. This case is exactly within the decision of Berens v. Buclcer, 1 Black. 313 . All compromises, bona fide made, bind the insurer. After abandonment, the agent of the insured is, like the insured himself, the agent of the underwriter.

Pendleton, contra.

The question is, whether there shall be a total, or an average loss. We contend the money re-, ceived by the agent of the assured is the same as if received by the assured himself, and must be deducted from the amount of the loss. This principle was settled in the court of errors, in February last.^[1] The person into whose hands the money has been paid, may have demands against the assured, and if so, he having received it under an appointment from them, will be entitled to set off the amount. We may thus pay the whole loss to the plaintiffs, and, when we ask for the proceeds from their agent, be answered with an account showing a credit to the full sum we may have paid. The plaintiffs ought not to doubt their own agent. By receiving from the underwriter one third, and giving credit for the two thirds at their disposal, complete justice is done.

Hoffman, in reply,

was stopped by the court.

The composition made by the agent, appointed by Graham, the master of the vessel, and part owner of the cargo, was done in good faith, after a capture and abandonment. It was made for a benefit of the insurer, to whom the person intrusted with the management of the business must be considered as the agent. It was a discretion within the scope of his authority. A discretion which, if prudently exercised, would often be for the benefit of the underwriters, but which would never be used if at the hazard of turning a total into a partial loss. Had the balance, after payment *of the composition money and charges, been received by Graham himself, it might have been a proper case for deduction. But the money is still in the hands of the foreign agent. He may fail, and the assured ought not to run that risk. It is to the person in whose hands the money is that the insurer must look. Judgment must, therefore, be for the plaintiffs,^[1]

Judgment for a total loss.

(a) (a) See Abbott v. Broome, 1 Caines' Rep. 303 , n. (a.)