Majority
p. 247Lewis K. Bridge versus The Niagara Ins. Co. of New-York. Dec. Term, 1828.
Headnote
A contract for the benefit of a third person made without his knowledge or authority, is a binding contract on the promisor; and if subsequently adopted by him for whose benefit it was made, it may be enforced by him.The plaintiff in this case was a general agent for a merchant residing at Carthagena, who was in the practice of making shipments to New-York. On the 19th of February 1827, the plaintiff, without any orders from his principal, caused an open policy of insurance for §5000 on goods laden or to be laden on board any vessel from Carthagena to New-York, on account of his principal, to be executed by the defendants, who received the premium. On the 17th of February the agent wrote to his principal informing him of his intention to effect said policy, and on the 23d of March following the principal replied to his letter, and conditionally affirmed his act.
On tire 21st of February, two days after the policy was effected, a loss occurred, by the perils insured against, on goods shipped by the principal on board the brig Mary from Carthagena to New-York.
Held, that they were covered and protected by the policy: that the defendants having contracted with the agent for the express benefit of tie principal, and having received the premium, could not be permitted to show any want of authority in the agent, and that the principal having adopted the act of the agent, could enforce the contract in the name of the agent.
This was an action upon a policy for insurance tried before Mr. Justice Hoffman. The policy was an open one in the usual form, on cargo for $5000, dated the 19th day.of February, 1827, and subscribed by the defendants. That part of it, which is deemed material to this case, was as follows, viz :—
“ Cargo. By the Niagara Insurance Company of New-York; “ Lewis K. Bridge, on account of dimos Foster, of Carthagena, or “ whomsoever it may concern, do make insurance, and cause to “ be insured, lost or not lost, at and from Carthagena to New- “ York, upon all kinds of lawful goods and merchandises, laden or “ to be laden on board the good vessel or vessels” &c. “ beginning “ the adventure upon said goods and merchandises from and im- “ mediately following the loading thereof on board of the said “ vessel at Carthagena aforesaid, and so shall continue and “ endure until the said goods and merchandises^ shall be safely
p. 248
“ landed at New-York aforesaid.” “ Having been paid the con- “ sideration for this insurance by the assurer or assigns at and after «the rate of one and a half per cent, in specie, or merchandise, or « both; and in case of loss, such loss to be paid in thirty days, “ after proof of loss and proof of interest in the said-.” &c. “ In case of loss, the same to be paid L. K. Bridge.
The declaration contained two counts on the policy, both alleging the lading of the goods and merchandise on board the brig Mary, and the loss of the vessel and cargo by perils of the sea, on the 21st day of February, 1827, on her voyage from Carthagena to New-York: one count averring the interest to be in Amos Foster ; the other in Amos Foster and John B. Gaicano.
There were also general counts of indebitatus assumpsit for work and labour: for money lent and advanced : for money paid and expended : for money had and received, and upon an account stated.
The defendants pleaded the general issue; and at the trial admitted that a bill of lading and invoice of 802 hides, 50 tons and 1332 lbs. of fustic, ten sacks of ipecacuanha, six hundred and forty castillanos of gold dust, twelve hundred and forty-two Spanish dollars, five hundred and thirty-six dollars in old gold, three thousand six hundred dollars in Columbian doubloons, shipped by Charles Dean on board thd Brig Mary, (F. Desaque Master,) to be delivered at New-York to the shipper on board, or his order, and dated on the 16th and 18th days of February, 1827, had been duly presented to them by the plaintiff among his preliminary proofs, on the 17th of July following. Attached to the invoice was an affidavit of the plaintiff, dated on the 19th of May, 1827, showing that the effects described in the bill of lading were the joint property of Amos Foster and J. B. Gaicano, and that no other person had any interest in the same.
The defendants also admitted, that an affidavit of Charles Dean (the consignee of said goods, who was on board the vessel at the time of her loss) sworn to before the American Consul at Carthagena, setting forth the particulars of the shipwreck of the Mary, on the 21st day of February, 1827, bad also been duly presented by the plaintiff among the preliminary proofs. This affidavit
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stated, that the vessel was cast away on the coast of South Ame r ica, on a shoal or rock called, “ Baxio Nuevo that the crew, to* gether with the deponent, proceeded in the boat for the main land, taking with them all the gold dust, doubloons, and dollars which had been shipped on board the brig. That they reached that part of the main land called the “ Musquito Shore,” and then attempted to proceed to St. Johns, by keeping along the coast; but owing to the difficulties in their way, they were] compelled to haul the boat upon the shore, bury the dollars in the sand, and distribute the gold and gold dust about the persons of the deponent and the officers of the vessel, for safe carriage, and to prosecute their journey on foot. That while on their way, two of the seamen gave out, and were left behind; but the deponent, the master, and the rest of the crew afterwards arrived at Corn Island, where a small vessel was chartered, in which the mate went back to the place where the dollars were buried, in pursuit of the men and the money left behind. On his arrival there, he found, by some lines written on a slate by one of the two seamen, that they had launched the boat, taken the dollars on board, and proceeded down the coast in pursuit of the master, supercargo, and crew: but these seamen were never heard of again, nor was the money ever recovered. Every exertion was made to save the vessel and cargo, and nothing but absolute necessity induced them to leave the dollars buried on the shore. The captain, deponent, and crew afterwards arrived at St. Johns, and there a regular protest was made, detailing the loss of the Mary.
The plaintiff then proved, by the deposition of Dean, and the testimony of other witnesses, that the goods specified in the invoice and bill of lading, were shipped on board the Mary; that they belonged to Mr. Foster and John B. Gaicano jointly, and that the vessel was lost as stated in the foregoing affidavit. He also proved the execution of the policies, and that the plaintiff had been the agent of Amos Foster in New-York since the year 1826, and had frequently effected insurances for him. It also appeared that Dean was a clerk in the employment of Foster, (who was a general commission merchant at Carthagena, and in. the constant habit of making shipments to New-York,) and that the property
p. 250
saved from the wreck (amounting to $3,661 and seven reals,) was delivered to the plaintiff.
The plaintiff also read in evidence a letter from himself to poster, dated on the 17th of February, 1828, (and which was received by him on the 12th of March following,) containing the following sentence: “ The insurance for Mr. Fabre will be attended to, and you may calculate on having a policy on your own account for $5000 on merchandise or specie, by vessel or vessels, so that you may ship with safety as to insurance.” The news of the loss of the Mary reached Carthagena on the 18th of April, 1827.
The defendants, on their part, did not question the occurrence of the disaster, nor the correctness of the preliminary proofs, otherwise than that they were not such as would entitle the plaintiff to interest, even if he should recover. But the defence was placed upon the grounds, that the defendants never became insurers on the cargo of the Mary. That Foster had given orders for insurance in Nov. 1826, to be effected on the Bunker-Hill or Athenian. That under those instructions the policy had been effected, and it did not apply to the cargo of the Mary: for the insurance of which, Foster had given instruction to a Mr. Benjamin Marshall.
The defendants then called upon the plaintiff to produce two letters .from Foster to the plaintiff, one dated Nov. 28th, 1826, the other on the 23d of March, 1827. The plaintiff’s counsel declined to produce those letters, upon the ground, that they had once been furnished to the defendants, who had taken copies of them.
The defendants then proved and read a copy of the first letter in evidence, which was as follows:
“ Carthagena, 28th of Nov. 1826.
Mr. L. K. Bridge,
Dear sir—I wrote you per Bogota, requesting you to insure for $3000, more or less, for and on account of Mr. Augustus Fabre, of Marseilles. I write this for fear the Bogota may meet with an accident, and I now wish you to open a policy for me, as I expect to ship some cash to you by the Bunker-Hill or Athenian,
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when she comes in, to be forwarded to Mr. N. Foster. Please insure, as value may appear on either vessel.”
(Signed) Amos Foster.
rrn , . , , . 1 he plaintiff s counsel then insisted, that the second letter of the 13th of March, 1827, was also to be considered as given in evidence by the defendants, and the presiding judge ruled the-point in his favour. This last-mentioned letter, after speaking upon a variety of subjects of business, concluded as follows: “ I “ intended to have shipped some hides to Mr. Judd by this vessel, “ as a remittance, but could not get them ready. Shall do so by “ the Athenian, which leaves this port in all of a week.” “ For “ the insurance on policy of $-3000, you will consider, that I have “ shipped in the name of Mr. Charles Dean, or whom it may con- “ cern, on board of the brig Mary, 11,000 dollars of produce and 15 specie consigned to him. She left this on the 17th of Febru- “ ary, and I trust she has arrived. If not, you will notify the in- “ surers of the circumstance of her having the property on board. “ You will ascertain by calling on Mr. Benjamin Marshall, to whom “ I had written to have 11,000 dollars insured, and for fear that you “ had not made the policy for the $5000, induced me to write to “ him to effect for $11,000. Now, should she have arrived safe, “ or if Mr. Marshall has effected the insurance as requested, and “ she lost, or not in, you will then consider that $5000 of the pro- “ perty, or more, if so expressed in the policy; and if the vessel is in cc safe, you may cancel the policy, and charge the expense to my ac- “ count.”
These two letters contained all the orders, which the plaintiff had received from Mr. Foster to make insurance, and all the information which he had on the subject. It appeared that the defendants, on the 24th of January, 1827, had effected another policy in the usual form for the plaintiff, from which the following is an abstract:
“ Cargo. By the Niagara Insurance Company of New-York. “ L. K. Bridge, on account of whomsoever it may concern, do make 5C insurance, and cause to be insured, lost or not lost, at and from u Carthagena to New-York, upon all kinds of lawful goods and
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“ merchandises, laden or to be laden on board the' good vessel or « vessels,” &c. “ the said goods, &c. hereby insured, are valued at «-» bavin »■ been paid the consideration for this insurance by the assured or assigns, at and after the rate of one and three quarters per cent, on specie or merchandise, (subscribed) “ iwenty“five hundred dollars.” The premium paid on this policy was seventy-five dollars, and on the same, there "was the following memorandum :
“ It is agreed that $290 shall be considered as insured on this “policy at and from New-York to Carthagena, in brig Bunker-Hill, “ captain Smith, at one and three quarters per cent., and that the “ same shall, when safely arrived, be considered as closing this po«Jicy. New-York, 29th March, 1827.”
The plaintiff then produced two bills of lading in evidence, dated on the 12th of January, 1827, at Carthagena, signed by Charles R. Shipman, master of the brig Athenian, acknowledging the shipment of 'Spanish dollars, by Amos Foster, on board of said vessel, to be delivered to the plaintiff at New-York, he paying one per cent, freight. One bill of lading was for one thousand dollars, and the other for one thousand and ten dollars.
The defendant closed his defence by reading the following letter from Mr. Foster to Benjamin Marshall.:
“ Carthagena, ISth February, 1827.
“ Mr. Benjamin Marshall, New-Yoik—
“ Hear Sir,—I now take the liberty of requesting you to “ effect insurance on account of Mr. Charier Dean, 01 whom it “ may concern, on ten thousand (say $10,000) in gold, silver, “ hides, fustic, and specie, (an invoice oi which will go forward “ by the vessel,) or as value may appear, on board oí the Herma- “ phradite brig Mary, of Philadelphia, formerly of New-York, “ captain F. Desauque, which leaves this on or about the 20th “ instant, as she is now loading. I should send you a draft on “ my former correspondent for amount of premium, but as the vessel “ and cargo will be consigned to you by Jilr. C. Dean, who goes out “in the vesel, I think you will have no objection to advance..the
p. 253I. That from all the evidence in the case, it appeared that the plaintiff was never authorized by Mr. Foster to effect any insurance on his account, except by his letter dated the 26th of November, 1826. An insurance, in obedience to that order, for $2500, was effected by the. plaintiff: but thatpnsurance was intended to cover a shipment by the Bunker-Hill or Athenian, consigned to Foster; and it could not be applied, without the consent of the assurers, to a different shipment, consigned to a different person. [Phil. on In. 59, 60. 63, 64.] If the first insurance was made by virtue of the letter dated in November, then the letter had performed its office ; it was functus officio, and could not be received for any other or a different purpose. The letter of the 26th of November authorized an insurance on cash, consigned to Foster, and the first insurance was on cash. But the subject lost, consisted of an assorted cargo of hides, fustic, ipecachuana, dollars, gold, gold-dust, &c., consigned nominally to Charles Dean, but in reality to Benjamin Marshall. Besides this, Mr. Foster never authorized an insurance in the form adopted by the plaintiff, who has seen fit to make the loss, if any, payable to himself and now brings the action in his own name. II. But suppose that the policy was not made under the letter of November 26th; the plaintiff in that case cannot recover, ..because the policy was then made without any authority, and there
“ amount. I write this to go by the way of Jamaica and Santia- . “ go de Cuba, and hope it will arrive in time.”
On the recommendation of the judge, a verdict was taken by consent for $4,500 in favour of the plaintiff, subject to the opinion of the court upon the case, and an adjustment of the loss by Mr. O. H. Hicks, under the direction of the court, with liberty for either party to turn the case into a bill of exceptions.
The cause was now argued by Mr. Di Lord and Mr. D. B. Ogden for the plaintiff, and by Mr. Geo. Griffin, for the defendants.
For the defendants, it was contended,
p. 254has been no subsequent ratification of the plaintiff’s acts by Fos 1 i. v ter, the real party in interest. The plaintiff himself cannot recover in his own right, for he has no interest in the subject; and if th® insurance was made for another without his authority or knowledge, and if the agent’s acts have not been adopted by the . principal, then the agent cannot recover in behalf of his principal. The plaintiff does not pretend -to have had any express original authority to effect insurance on the cargo of the Mary, nor does he prove any general authority to effect insurances for F osier. The presumption of such authority is taken away by the letter from Foster to Marshall, in which he directs Mm to effect the insurance. No general agent has any authority a priori, to effect insurances for his principal, which will bind him, without his subsequent assent.' If there be a ratification of the act, then it will be good, because the pricipal will be bound; Suppose that the plaintiff in this case had paid Foster’s money to the defendants, and that Foster had repudiated his acts; could not Foster have recovered his money back from the defendants 1 There can be no presumption of a ratification in such a case, but the ratification must be .explicit and unqualified. It must adopt the whole act; for the principal is not at liberty to select that which may be beneficial, and reject the part which may be injurious. As between the principal and his agent, the rule may be less rigid; but as between the principal and third persons, it goes to this extent. In this case, Foster has never adopted the act of the plaintiff in any explicit or unqualified manner. He had heard of the insurance on the 23d of March, 1827,. and in his letter to the plaintiff of that date, instead of approving of his conduct in direct and explicit terms, he makes a fraudulent attempt to avail Mmself of the policy in case -oft a loss, and to evade the premium in case the vessel had arrived in safety. If the vessel had been safe, he would have charged the plaintiff with the premium, and would have disclaimed his act. The letter is framed with a studied and fraudu
p. 255lent ambiguity, applicable to any state of facts, and the court cannot consider it as any ratification of the plaintiff’s acts. If then, the policy was made without authority, and if the conduct of the plaintiff has not been ratified by Foster, there can be no recovery in this case. The law will not permit a stranger without interest to effect insurances for third persons without their approbation and knowledge, which shall be binding upon the parties. The contract is not binding upon the assured, and it cannot be enforced upon the assurers. III. The recovery in this case, if any be had, can be only for a partial loss, and there can be no allowance of interest. 1. There was no abandonment, and there is no proof of at otal loss; but on the contrary, the evidence is positive, that a part of the cargo, amounting to $3,661, was saved and delivered over to the plaintiff. The recovery, therefore, must be for an amount to be adjusted by the referee. I. That the policy in suit was, not effected for the purposes directed in Foster’s letter, of the 28th of November, 1826, nor under its particular authority. The order contained in that letter was carried into effect by the policy of the 24th of January, 1827, which was satisfied. There was no shipmént to which the present policy could be applied, except that by the Mary. The letter from Foster, dated in November, directed an insurance for $3000, more or less, for Fabre and himself, or cash in the Bunker-Hill, or
2. There can be no just claim for interest. It was the duty of the plaintiff to have liquidated his claim, when he presented his preliminary proofs ; for these proofs are mere matter of notice to the defendants. Interest would accrue after a demand and notice of the amount claimed; but here there were no materials put into the defendant’s hands, by which they ever could have made up the amount of the loss, but all the proof is vague and uncertain. The defendants could not tell the amount to be paid, and there cannot, therefore, be any allowance of interest. [1 John. Rep. B. 15. 5 Cowen’s Rep. 587.]
Mr. Lord and Mr. Ogden contra, contended,
p. 256Athenian, as value might appear in either vessel. Under that order the policy for $2500 was effected, by which $2210 were insured on the Athenian, and by the memorandum on that policy the remaining $290 were transferred to the Bunker-Hill. The Athenian and Bunker-Hill both arrived in safety, and the first policy was fully satisfied. The policy in suit, therefore, could not have been made under that title; it was for a different amount, and had no reference to .the particular subject of that insurance. In the absence of all proof, that the policy in suit was effected under the authority and order of Foster’s letter, the fair inference is, that the first insurance fulfilled all the objects of that letter, and was made in direct reference to it. The plaintiff in his letter of advice to Foster, dated February, 17th, 1827, made no mention of an insurance, on account of previous orders, but says expressly,'that he has effected an insurance for $5000, on vessel or vessels, under which Foster can thereafter safely ship his property to this country. The most that is proved upon the subject is, that the plaintiff stated to the underwriters after the loss, that the letters contained all his orders upon the subject of insurance. This shows, perhaps, that the present policy was effected without orders, but does not show that it was effected in obedience to the letter of November, 1826. It may, therefore, be considered as demonstrated, that the first policy was the one effected under that letter, and that Foster’s orders relative to that subject were obeyed, and the objects of all parties answered by that insurance. If the policy has once been applied to any particular subject, then we admit, that it cannot be subsequently applied to another; but we totally deny that the policy in suit has ever been applied to any property except that on board the Mary. II. The policy in suit, whether made with or without orders, took effect upon the property of Amos. Foster at risk, at and from its date : it therefore attached to the cargo of the Mary. What policy of the law is there which forbids A to make insurance for B, without orders, provided the name of the real party jn interest appears upon the face of the policy ? Why may not
p. 257one gratuitously insure for another 1 The underwriter cannot complain, for he receives the premium, and understands the contract precisely when it is made; and he in general reduces it to writinsr T , . In this case, the policy was fairly made without fraud; the subject of the insurance was correctly described; the name of the real party in interest was disclosed; the defendants received the premium; the subject was put at risk, and was lost. Why then should not the defendants fulfil that contract of indemnity, which they deliberately made for a valuable consideration 1 When A makes a contract for the benefit of B, the law will presume an assent on the part of B, until the contrary appears. [1 Pow. on Con. 138. 1 Fonb. Eq. 206.] And if one man make a contract for the benefit of another, the latter may adopt it when the contingency arrives. [Hagedorn v. Oliverson, 2 Maule & Sel. 485. 13 East, 274.] In such case Ais taken by the law to be the agent of B, and the latter may enforce the contract. [ 1 John. Rep. 139 . 3 Bos. and Pul. 148. note (a) 10 Mass. R. 287 .] III. The policy in suit was effected by the plaintiff as the agent of Amos Foster, a general commission merchant, who was in the habit of making shipments constantly; it was intended tobe applied to shipments on his account, and he, by bis letter of the 23d of March, 1827, adopted the act of the plaintiff in making the policy. The evidence shows these facts, and the insurance was made in the most general form by the agent for the benefit of his principal. It was not upon any specific property, but upon the property of Amos Foster generally, to be shipped from Carthagena to NewTork. No particular vessel was named or intended, as the object was to cover a particular amount of property on board any vessel. The act in itself was both prudent and proper, aud the agent gave immediate notice of it to his principal. The principal on the 23d March wrote to the agent approving his conduct, and adopting his act. The letter, it is true, is not as clear and explicit as might be desired ; but the ambiguity arises from the fact that the actual con
p. 258Could he -after this, if the vessel had arrived in safety, have disclaimed the act of the plaintiff, and recovered back the premium from the defendants, or the plaintiff1? If Foster intended to repudiate the act of Bridge, he was bound, both legally and morally, to state his objections when he heard that the insurance was effected. Not having done this, but on the contrary having-approved the act, and given directions for further proceedings upon the subject, Foster never could have maintained an action for the premium against any body. Not against his agent, for he had adopted his act; and not against the defendants, for they had earned the premium, the property having been at risk. IV. The defendants, being bound to pay the loss in thirty days after the proof of interest and loss, are chargeable with interest, after thirty days from the 17th of July, 1827 ; and the salvage being in the hands of the captain, they are as much chargeable with notice of the amount as the plaintiff. [Com. Dig. Pleader, c. 75.]
tingency was not clearly within the view of the principal. He did not doubt, that Marshall had effected the insurance, and his mind was turned towards a return of the premium in that case. ' One thing is certain, that at the date of that letter, he had not heard of the loss; for if he had he would have adopted the plaintiff’s act without hesitation. The letter then was written in good faith; Foster supposed himself chargeable with the premium, and desired that if the vessel were not in, or if Marshall had not insured,, that then this policy should stand. But if the vessel was in, or if Marshall had fully covered his property, he did not wish to pay two premiums for one risk, and under these views he wrote the letter.
This is not a case of unliquidated damages, for the amount becomes certain, when the salvage is deducted from the amount of the invoice. But this is a positive contract to pay by a certain day, and a jury can even in cases of partial loss give" interest. [Anon. 1 John. Rep. 315 .] The rule for interest should depend on the default of payment, and if the defendants are liable to pay, why keep the plaintiff from his money for two years, without com
p. 259pensation 1 [The Renss. Glass Factory v. Reid 5 Cowen's Rep. 587.]
This is an action on an open policy of insurance, dated the 19 th of February, 1827, on goods, &c. laden, or to be laden on board any vessel from Carthagena to New-York, on account of one Foster, who resided at Carthagena. The defence rests on two grounds : 1st, That the policy never attached upon the goods which were lost, and for which the plaintiff seeks to recover; and secondly, that if it was intended to cover such goods, it was never in fact consummated so as to become a binding contract on the defendants.
Under the first branch of the defence it is contended, that the policy was made by the plaintiff, in pursuance of the orders contained in the letter of Foster to him of the 28th of November, 1826. In that letter the plaintiff is directed to open a policy on cash, to be shipped from Carthagena, by the Bunker-Hill or the Athenian. The cash so shipped by the Athenian arrived ; and if the policy in question was made for the purpose of covering that adventure, it is quite clear, that it cannot now be applied by the plaintiff or Foster, to any other vessel or cargo, though coming within its general terms. On the part of the plaintiff it is contended, that a policy dated the 24th of January, 1827, and also made by the defendants, was the one opened by him, in pursuance of the' directions contained in that letter ; and without going into a detail of the facts of the case, it is sufficient to say, that I consider that the proof satisfactorily shows, that the position assumed by the plaintiff is the true one.
It appears, then, that the policy in question in this case was opened by the plaintiff, without any orders from Foster, with a view to cover any shipment to be made by him, coming within the general terms; that such a shipment was made in the Mary, and that'a partial loss of the cargo has taken place; and the question now is, whether the policy of the 19th of February is binding on the defendants.
It seems to be well settled, that a contract for the benefit of a third person, without his knowledge or authority, is a binding
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contract bn the promissor, and may be enforced by him for whose benefit it was made. [Schemerhorn v. Vanderheyden, 1 John. R. 139. 3 Bos. and Pul. 149. n. Arnold v. Lyman, 17 Mass. 40010 Mass. 287.]
It,can" therefore be no objection to the policy in question, that it was made without any instructions from Foster; for the plaintiff was Foster’s agent generally, and had been in the habit of frequently making insurances for him. The defendants, having made this policy, and received the premium, cannot be permitted to show any want of authority in the plaintiff to act for Foster. It follows, therefore, as a necessary consequence, that the the defendants are bound, imless Foster has disaffirmed the act of the plaintiff in such a manner as to discharge them from the contract. It appears that Foster, by a letter dated at Carthagena the 5th of February, 1827, gave directions to one Marshall to" effect an insurance of $10,000 on the cargo of the Mary, then about to sail for New-York. The plaintiff, on the 17th of February, wrote from New-York to Foster, that he intended- to effect a policy on his account generally for $5000, so that he might make any shipment with safety. On the 23d of March following, Foster wrote to the plaintiff that he had made a shipment by the Mary, and he instructs the plaintiff, if the vessel had not arrived, to notify the insurers that she had the property on board. He further directs him to ascertain from Marshall, whether he had effected any insurance on the vessel, and if he had, or if the vessel had arrived safe, he was instructed to cancel the policy, and charge the expense to his account.'
Such I understand to be the purport of Foster’s letter, and it amounts to a conditional affirmance of the act of the plaintiff in effecting the insurance. He declares his willingness to consider the policy as effectual if the vessel had not arrived, and his disposition to abandon it, if there had been a previous insurance, or if the -vessel was known to be safe. This conditional ratification may not have been altogether consistent with honesty and good faith: but the question is, whether it was such a disaffirmance of the contract made by the plaintiff', as to discharge the defendants from its obligations. The contingency on which the plaintiff was
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instructed to consider the policy as effectual, actually happened; the vessel had not arrived when Foster’s letter was received, nor had Marshall effected any insurance on her. It can scarcely he questioned, under such a conditional ratification of the contract, if the vessel hud subsequently arrived safe, that the defendants would have earned the premium, and that it could not have been recovered of them by the plaintiff or by Foster on the ground that the policy had never attached. If the policy, then, became binding on Foster, or the plaintiff, I see no reason why it should not be held to he binding ou the defendants. The intention of Foster to cancel the policy in certain events, which did not happen, cannot, I think, be construed a fraud on the defendants, so far as to release them from their contract, when they had fairly assumed the risk, and had received the premium for it.
I think that the plaintiff is entitled to judgment, the amount to be adjusted as is provided in the case.
Judgment for plaintiff.
[D. Lord, Att'y for the plff. G. W. Strong, Att'y for the deft.]
Note.—The Court decided, that the loss in this case was a partial one merely, and that the plaintiff was not entitled to interest. The underwriters could not make up the amount of the loss from the proofs before them ; they could no.t ascertain the sum to be paid; and where the plaintiff’s preliminary proofs ate thus defective as to the amount of the loss sustained, it would be inequitable to charge the defendants with interest.