Williams v. Delafield — 2 Cai. 329

Majority

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Williams against Delafield.

Headnote

The arrival of a vessel, at a port insured to, from a port insured from, though she may have sailed subsequent to the vessel insured, affords no ground for presuming the assured had any knowledge of the bad weather the arriving vessel had sustained, nor that the assured received information of the sailing of his vessel by the one which arrived, when circumstances show it might have been received in another way. A representation saying, “lam informed of the vessel’s sailing, and she is out this day twenty-six days,” is not an assertion as a fact, that she is out twenty-six days, and, therefore, is not a misrepresentation, though she may have been out twenty-seven. If a vessel be insured as out of time, and she be out one day more than the information received specifies, if the jury do not find it to be material, the court will not say it is so.

Assumpsit upon a policy, on the schooner Margaret, from Cape Francois to Baltimore.

The insurance was effected *on a written representation, dated Baltimore, 3d January, 1802, but' in fact, extracted from a letter of that day, addressed by the plaintiff to his broker, and was in these words : “I have information of her sailing, and she is out this day twenty-six days.” From this circumstance 7 per cent, was paid on the vessel, though her cargo had been insured at four,: but the three per cent, extra was given in consequence of her being out of time.

On the trial it appeared that a Captain Weaver, who had sailed from Cape Francois on the 13th of December, 1801, had arrived at Baltimore on the 28th of the same month, having experienced a storm of 39 hours, which he communicated to his owners, and that his arrival had been mentioned in the newspapers of that place. After being there several persons inquired for the Margaret, one of whom, but not the plaintiff, expressed his fears of her being lost. At the time of making claim on the uñderwriters, there was exhibited, as proof of loss, a certificate of the Margaret’s having sailed on the 7th of December, 1801, from Gape Francois for Baltimore.

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This was enclosed in a letter, dated Baltimore, 18tb of December, 1802, in. wbicb tbe plaintiff said, “ My information, with respect to tbe sailing of tbe Margaret, was only verbal from a captain who bad just arrived from the Cape, and mentioned that tbe Margaret bad sailed three days before him. This, from the passage which he said he had had, would make her time of sailing on the 8th, but from the certificate which I received from the West Indies it appears she sailed on the 7th. I do not expect that one day can make any difference.” These circumstances and papers being given in evidence, the defendant contended the policy was void from misrepresentation and concealment. The judge charged, that if the jury believed the plaintiff’s information, at the time of the Margaret’s sailing, was derived from Captain Weaver, who communicated also the storm he had encountered, which was withheld, and that it was material whether the vessel sailed on the 7th or 8th of the month, they ought to bring in their verdict for the defendant; if otherwise, for the plaintiff, in favor of whom the jury found.

Pendleton, for the defendant.

We apply for a new trial on these grounds; 1. There were material concealments, which annulled the contract; 2. There was a material misrepresentation in stating the Margaret to have been out 26 days. The circumstances of the arrival oí Weaver being announced *in the newspapers, and the various inquiries made respecting the Margaret, are enough to presume the assured informed of the storm which Weaver encountered. This, being on the same voyage, ought to have been communicated, as it is probable vessels pursuing the same route, experience the same weather. It would therefore, have increased the risk, and consequently the underwriters’ calculation. An omission to disclose an important fact, though it be through accident, or inadvertence, is fatal. 1 Marsh. 347 , 349 ; 1 Emer. 20; Fillis v. Bruton, Park, 182 ; T Marsh. 348. The

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assured is bound to be precisely correct when be undertakes to specify time. A suppression of part of wbat is known destroys tbe policy. Batcliffe v. Shoolbred, Park, 181; IP Andrews v. Bell, 1 Esp. Eep. 873, is within the letter of the present case. There the assured had .information, by a letter dated the 8th of November, that his vessel was ready to sail. On the 2d of December, after the arrival of a ship which sailed on the same day as his, he insured, without communicating this circumstance, and Lord Kenyon ruled it to vacate the policy. So in Booh v. Thurmond, Mill. 57, and Stewart v. Morrison, the withholding that the information was received by a subsequent vessel, was held to avoid the contract. However innocent a concealment may be, and though by a broker, the effect is the same. Shirley v. Wilkinson, Doug. 306. The whole of what the assured knows ought to be laid before the underwriter. M’Dowal v. Frazer, Doug. 247. If from what the plaintiff was told, he drew an inference of a fact, and asserted it to be so, he took the risk of that upon himself. He here says the vessel was out 26 days; she had been out 27. Though this was gathered from information, it was positively asserted, and, being untrue, there can be no recovery.

Biggs and Badcliff, contra.

The premium paid in this case was expressly for a vessel out of time, and on that account an advance of 75 per cent was made. To a vessel avowedly out of time a day is immaterial; as for a vessel in time, a variation of the period she has been out is unimportant. In M'Kay v. Bhinélcmder, 1 Johns. Case, 408, decided in 1800, the representation was, that the ship had been out nine weeks, when, in truth, she had been out ten; but, as it was within the period of the voyage, it was held immaterial. Whether a fact be so or not is for jury deter mination, and they have, in this case, decided the question The authorities cited apply where information is suppressed, or unintentionally omitted *in a

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material point, or where the party undertakes to affirm positively, and it turns out otherwise. Neither of these classes include the present case. The argument of concealment arises from an unwarranted presumption, first that the knowledge of the sailing of the Margaret was derived from Weaver, and then another presumption that he communicated an account of the storm he had encountered. By comparing the two letters of the plaintiff, read in evidence by the defendant, and, therefore, his testimony, it appears that the information received by the plaintiff was from a captain who sailed three days after the Margaret. This must have been then by a person who left the Cape on the 10th. Weaver sailed on the 13th. In the next place, if the computation of time be that by which a seaman would reckon, and, as it seems to have come from the master of a vessel, this is likely, the Margaret would, according to the computation allowed in Dennis and Williams v. Ludlow, (ante, 116,) have been out exactly 26 days. It is necessary only to add, that the plaintiff gives the time merely as matter of information received, and not as a positive assertion.

Boyd and Pendleton, in reply.

If a vessel be out of time, every day is more and more important. Whether a representation be material or not, is a question of law arising from the fact, and, therefore, not for a jury, but the court to determine.

delivered the opinion of the court. The motion for a new trial is made on two groujsds; 1. A material concealment ;^[1] 2. A material representation as to the time the vessel was out. The concealment is supposed to consist in not communicating the' storm, and all that Captain Weaver might have related. B ut Captain Weaver does not pretend that the' plaintiff knew of his arrival. He states that about a week 'after he arrived, a Mr. Hillian, wbo was interested in tbe cargo of tbe Margaret, inquired of him when gbe sailed, expressing at tbe same time bis fears that she was lost. To make out tbe misrepresentation, tbe defendant relies on tbe two letters adduced by bim in evidence; contending that by tbe first there was a positive assertion of-tbe Margaret’s being out 26 days, when by tbe second she appears to have been out 27.

At tbe trial tbe judge fully submitted tbe cause to tbe jury, on tbe point of concealment, expressing bis opinion to them pretty strongly that there bad been a material concealment; *witli respect to tbe difference cf tbe day, be intimated an opinion that it was not r, material misrepresentation. Tbe jury by their verdict, have considered that there were no material concealments; pnd, unless tbe evidence preponderates against it, it ought not, on this point, to be disturbed. There was no evidence that tbe plaintiff knew of tbe gale which Weaver bad encountered. He might or be might- not. To intend that he did not know of it, and concealed it from tbe defendant, s to intend from mere possibilities that be bad been guilty )f a fraud. This would be a presumption against legal maxims, and, in this stage of tbe cause, against tbe solemn finding of the jury. The charge of withholding information from tbe assurer, as to tbe arrival of a vessel at Baltimore, which sailed three days after tbe Margaret, is equally unfounded. The plaintiff’s letter of tbe 3d of January, 1802, in which be observes, “ I have information of her sailing,” sufficiently apprised tbe defendant that a vessel which sailed with or after the Margaret, had arrived. If, however, there is any pretence for deeming this a concealment, tbe jury have passed upon it, and considered it an immaterial circumstance. With a verdict, on these grounds, tbe court can perceive no reason to be dissatisfied.

Tbe fact of misrepresentation is alleged to consist in tbe plaintiff’s stating, as an independent and substantive fact, that tbe Margaret bad been out but twenty-six days, when

(a) (a) See Ely v. Hallett, ante, 57, and note to that ease.

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in truth she bad then been out twenty-seven. But the plaintiff did not know the fact to be different from wbat be represented it. The court do not mean to decide that a misrepresentation of one day may not be material, and avoid a policy. They forbear expressing, in this ease, an opinion on that point; but they are clearly of opinion, that when the plaintiff represented, “ I have information of her “ sailing, and she has been out this day twenty-six days,” in good sense and strict construction, the information was applicable as well to the sailing as the time she had been out. The court, therefore, deny the motion, with costs.

New trial refused.