Majority
p. 149Gordon, survivor, &c. against W. Bowne.
Headnote
This was an action of assumpsit on an open policy of insurance, on the cargo of the schooner Alice, from Washington in North-Caro lina, to New-Yorlc. The declaration was of the term of Nov., 1803, and for a total loss by the perils of the sea. There was a-count for money had and received to the use of the plaintiff. Plea, non-asumpsit, and notice of a set-off. The cause was tried attheJVisw- York sittings, in April, 1806, before Mr. Justice Spencer, when the jury found a verdict for the plaintiff, subject to. the opinion of the court, on a case containing the following facts. The preliminary proofs were exhibited to the defendant on the 17th February, 1803, and the proof of interest about the first July following. The proof of loss was, that the vessel sailed from Washington for N&w-YorJc, about the middle of February, 1802, and had not been heard of since. There was an indorsement on the policy, by Mr. Ferrers, who was shown to be the agent of the insurers, for examining and reporting on the preliminary proofs. He stated, that by the evidence produced to him, on the 17th February, 1803, the vessel sailed the 16th February, 1802,' and had not since been heard of, and that full interest appeared, if the defendant was satisfied as to the shipment of the goods. No abandonment was made. The proof of interest was, that the vessel had on board ten hogsheads of sugar for the account and risk of Munro &f Gordon, and a quantity of ruin and turpentine consigned to them, a part of which was to replace an equal amount in sugar and molasses, taken outA vessel sailed from Washington, North Carolina, for New-York, the 16th Feb. 1802, and was never heard of afterwards. The cargo having been insured for that voyage, the assured, on the 17th Feb. 1803, exhibited proof of these facts, and in July following proof of interest. It was held that the lapse of a year,, without any intelligence of the vessel, was sufficient to - afford a presumption of total loss, and - (hat no abandonment was necessary. It seems that there is no precise time established for this presumption ; but each case must depend on its particular circum
p. 150
of the Alice at Washington, on her arrival from Barhadoes,
stances, having’ a regard ces. ~A sei.off policy°oA” surance is in-though the plaintiff claim to tile nature of the voyage and tho distnnoo nf nln-
The set-off claimed by the defendant was a promissory note of Munro &{ Gordon to the defendant, da.ted the 5th March, 1802, for 984 dollars and 31 cents, payable in eighteen months, which fell due the 8th September, 1803. This set-off was objected to, on the part of the plaintiff, but the objection was overruled by the judge. The plaintiff then proved, that about the timethe note was dated, the plaintiff and his deceased partner, Munro, made a compromise with their creditors, to whom they gave notes, indorsed by other'persons, as their security, for ten shillings in the pound, payable in 6 and 12 months, and their own n°fes f°r five shillings in the pound, payable in 18 months, the residue of their debts being released by their creditors. The notes payable at 6 months were paid by Munro &f Gordon, those at 12 months by the indorsers, and those at 18 months were still unpaid ; one of which is the note held by the defendant, and offered as a áet-oífi The policy on which this action was brought, was assigned to the indorsers of the notes at 12 months, a short time before they were paid, and for their indemnity ; but at the time the notes were indorsed there was no agreement on the part oí Munro Gordon to give them security. The only notice the defendant had of the assignment of the policy, was by one of the assignees, who, about the 1st July, 1803, demanded payment of the loss, on behalf of the assignees, and made frequent applications to the defendant in writing, for that purpose. The defendant never suggested that he had any set-off.
Hopkins and Badcliff, for the plaintiff.
The vessel sailed from Washington the 16th February, 1802, and on the 17th February, 1803, the loss was claimed. Here a year and a day had elapsed without any news of the vessel, and the jury might fairly infer that she was lost— There is no reason to fix the time that is to afford this presumption of loss, at a year and a day, in all cases, without regard to the length of the voyage, and other cir
p. 151
cumstances* Neither in England, nor in this country, is there any ñxed rule on this subject \ though France, Spain, and some other countries have made positive re? gulations as to the time.[6]
[Court. You need not argüe this point further.']
This was an open policy, and if the duties and premium are added to the first cost of the sugar, the amount will be more than the sum insured, besides the naval stores consigned to the plaintiff, and in part of which he wq$ beneficially interested* The plaintiff has, therofore, produced sufficient proof to entitle him to recover'the full amount insured.
3. As to the set-off claimed by the defendant. The right of set-off depends not so much on the form of the action as the nature óf the demand stated in the plaintiff's declaration. The demands of the parties must be certain as well as mutual. A set-off cannot be pleaded to an action for-general damages in covenant or assumpsit, or for the breach of a special agreement, where the amount to be recovered is unliquidated, and cannot be ascertained without the intervention of a jury.[6] The damages to be recovered on a policy of insurance are always uncertain ; the amount depends on the proof at the trial. The plaintiff may declare for a total loss, yet be able to. prove only a partial loss, the extent of which will be greater or less, according to the circumstances of each particular case. A policy of insurance is a contract of indemnity. The assurer undertakes to indemnify the assured, for the damages he may sustain by losses in consequence of the perils insured against by the policy. It is like a bond to save harmless, or for good behaviour. In the case pf Colson v. Welsh,[7] Lord Kenyon said that the statute of set-off applie'd only to cases of mutual debts ; that where the plaintiff’s demand was on a special count or ground of action, as for the breach of an agreement, a set-off was inadmissible, though it might be allowed where
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the plaintiff had recourse to the money counts. Debts to be set off must be such as an indebitatus assumfsit will ]je for.[4]
There is no case to be found where ¿policy of insurance has been allowed to be set off. The only case in which it is mentioned is that of Grove v. Dubois but there, the sums set were ^01' 'osses actually paid by the broker. In Brotan v. Gumming,[6] this court considered a ¿eraan(j for not keeping a vessel fully insured, offered to be set off, as inadmissible. If a policy of insurance cannot be set off, e converso, nothing can be set off against it.
Again, any demand arising subsequent to the assignment by the plaintiff, cannot be set off, for the court will regard and protect the interests of assignees and trustees.[7]
S. Jones and Biggs contra.
As to proof of interest, verf questionable whether any of the articles, except the sugár, can be taken into the calculation; for the. plaintiff had not a direct or insurable interest in them.
2. In regard to the proof of loss, no rule appears to have been established in this country, as to the time when a vessel that has never been heard of shall be presumed to be lost, unless a year and a day may have been adopted by general usage. The law on this subject differs in different countries, and it is inportant that we should have some fixed regulation. In this case there has been no abandonment. It is true, that where a loss is physically total, no abandonment can be necessary. But there is no evidence that the vessel has sunk at sea; she may have been stranded on some distant coast, and a part be saved. Marshall[7] says that the in-' sured may abandon, after the time has elapsed which atfOI’ds the presumption of loss.
3. The doctrine of set-off, is an equitable one, and ought to be favoured and extended. The declaration
p. 153
in this case is not for uncertain damages. It is for a . , . . certain sum, or a certain loss. The action is assumpsit. Where the claim is for certain damages, or where the amount can be made certain by proof, without the intervention of a jury, it may be set off. The plaintiff demands the whole sum insured, deducting two per cent. 5 this is specific, it being for physical total loss. In an action for goods sold and delivered, the plaintiff avers a particular value ; but the damages are as uncertain as in the present case, for a jury may give more or less than the precise sum alleged. The note given to the' defendant was no extinguishment of the previous debt due to him from the plaintiffs. At the time of the assignmént there was a debt really due ; and it would be unjust to permit an insolvent debtor to assign over his bond, or debt, so as to deprive his debtor of the right bp set-off. There was no proof of any notice of the assignment of the policy until long, after the note was given.
Several other points were raised and argued by the counsel on both sides ; but they were not considered or decided upon by the Court.
delivered the opinion of the Court.
This case gives rise to two general questions. 1. Has the plaintiff showed a right to recover ? 2. If he has, is the defendant entitled to his set-off?
1. It was proved that the vessel sailed from North Ca-1-rolina for New-York, about the middle of February, 1802, and had not been beard of since, and that the pre-' ]iminary proofs were exhibited to the defendant at the expiration of one year from the sailing of the vessel.'. After the lapse of a year, there was in this case a suffi_ cient presumption of loss to justify the plaintiff to call oft the defendant for payment. There is no precise time; from which this presumption is to arise. Each case-must depend upon its own circumstances,. (Marshall,
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4i7 >8.) and considering the relative situation of the two places which formed the commencement and end 0f tjie VOyage insured, the presumption was reasonable thát the vessel had perished.
No dispute exists about the due exhibition of the preliminary proof of loss, and as to the preliminary proof of interest, it appears that an account of 10 hogsheads of sugar and 75 barrels of turpentine was exhibited to Mr. Ferrers, the known agent of the insurers, to examine and report on preliminary proofs. It was proved upon the trial that those articles were on board ; and that the sugar w’as on account and risk of the plaintiffs, and together with the turpentine was consigned to them.— These articles, with the premium and charges thereon, were sufficient proof of interest to the amount of the sum insured. •
It is however objected, that here was no abandonment, and that an abandonment was requisite in every case where the plaintiff claims a total loss. The answer to this is, that the plaintiffs had nothing to abandon, There' was an absolute destruction of the whole subject, and the ceremony of abandonment would have been idle. In the case of Abel v. Potts, (3 Esp. Cases, 242.) an abandonment was not required where the loss was total, and continued so.
The plaintiff, therefore, in the first instance, showed a good right to recover. The next question is as to the right of set-off. It would be unnecessary for me to examine several of the collateral points discussed under this head ; for I am of opinion that a set-off cannot be permitted to a count on an open policy of insurance. The demand of the plaintiff, as well as that of the defendant, must be specific and certain ; there must be mutually, (or on each side,) a debt to authorize a set-off. A promissory note on the part of the defendant cannot be seoff against a demand of the plaintiff, unless that demand be of such a nature that it could be set off by a
p. 155
defendant, if it should exist in him. (Montagu on Set-off, 18, 19. Colson and Welsh, 1 Esp. Cases, 378.) The statute says, (Laws of New-York, vol. 1. p. 347.) that “if (wo or more persons dealing, together, he indebted to each other, and one of them sues the other,” &c. The English set-off act is in substance the same. The statute of 2 G. 2 c. 22, § 13 declares, that where there are mutual debts between the parties, they may be set off. The words “ mutual debts,” in the English statute, and “dealing together and being indebted to each other,” in our act, are expressions of the same import, and the English decisions upon the construction of their statute, are perfectly in point as to the construction of our act. In Hewlet v. Strickland, (Cowp. 56.) it was held that uncertain damages could not be set off, and that the debts to be set off must be such as an indibitatus assumpsit would lie for. The same doctrine was held in Weighall v. Waters. Both these cases related to unliquidated damages, in a matter of contract, and they were cited and approved of by this court, in Brown v. Cumming . The case of Colson v. Welsh, already referred to, is very much in point, as it established that a set-off could not be admitted against an uncertain demand of the plaintiff, or one sounding in damages for the breach of an agreement. It will be scarcely necessary to show that the present ac. tion is for uncertain and unliquidated damages. In the case of an open policy, the extent óf the loss, and the extent of the interest, must always be matters of great uncertainty, until the proofs have been exhibited to, aud passed upon, by a jury. A policy is, emphatically,- a contract of indemnity, and nothing can, in most cases, be more unliquidated than the amount of. such indemnity. It depends upon a great variety of facts and circumstances, tobe disclosed and digested at the trial. Whatever therefore might be our speculations on the question, if it'were to be determined on general principles of equity, ive are in this case bound by' the language, and settled construction of the statute.
p. 156
We are therefore of opinion, that judgment must be rendered for the piaintiff.
Judgment for the plaintiff.
Footnotes
- § § Emerígon 381.