Baker v. Ludlow — 2 Johns. Cas. 289

Majority

p. 289

Baker against Ludlow.

Headnote

Where “ dried fish,” were enumerated among the articles in the memorandum to a policy of insurance, as free from average, unless general; as also, “ all other articles perishable in their own nature it was held, that pickled fish were not included in the memorandum, and that the plaintiff might recover for an average loss on them.

This was an action on a policy of insurance, on goods, from North Carolina to Martinique. At the foot of the policy, was the following memorandum : “ It is agreed, that salt, grain of all kinds, Indian meal, fruits, cheese, dried fish, vegetables and roots, and all other articles perishable in their own nature, are warranted by the assured, free from average, unless general.”

The cargo consisted of pickled fish, peas and other articles. During the voyage, the vessel sprung a leak, and the peas, which were in bulk, became so much damaged and heated as to spoil the fish. The fish were herrings pickled in North Carolina under the direction of sworn inspectors, and were in good order when the vessel sailed.

At the trial, three witnesses on the part of the plaintiff were of opinion that pickled fish was not a perishable article within the meaning of the memorandum

p. 290

*in the policy; and one of them said that the memorandum had been altered within a few years to dry fish, so as to exclude pickled fish. Two witnesses for the defendant said they thought pickled fish, particularly her rings, a perishable article within the memorandum.

The jury found a verdict for the plaintiff, for a partial loss.

A motion was made to set aside the verdict, and for a new trial.

Pendleton, for the defendant.

Troup and Boyd, for the plaintiff.

By the terms of the memorandum, fish in general were not intended to be included ; and the expression dried fish implies that other fish were not intended; for expressio unius exclusio est alterius.(^[1] ) The subsequent words, £! all other articles perishable in their own nature,” are not applicable to the articles previously enumerated, nor can they repel the implication arising from the enumeration of them. The weight of evidence is also in favor of this construction, as being that in which the sense of the words is generally understood. We are, therefore, of opinion that the plaintiff must have judgment.

Judgment for the plaintiff(^[2] )

a a (a) See Co. Litt. (Coventry’s read, ed.) 210, (a.); Bro. Max. 278,286, where many cases are cited.

b b (b) Upon the construction of policies of insurance, see 1 Phillips on Insurance, 43, et seq.; l Duer on Ins. 158, et seq.