Hyperlawhypertext legal database Forgay v. Atlantic Mutual Insurance 25 N.Y. Super. Ct. 79

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Forgay v. Atlantic Mutual Insurance

25 N.Y. Super. Ct. 79 2 Rob. 79 Court N.Y. Super. Ct. Decision date 1864-02-13 English

Delivered by Robertson, J.

Contents

Majority

p. 79
William Forgay and John Conner, plaintiffs and respondents, vs. The Atlantic Mutual Insurance Company, and John W. Fowler, administrator, &c. of S. V. Peabody, and in his own right, defendants and appellants.

Headnote

1. All the owners of a ship separately authorized and instructed S. &. T. to keep their several interests in her insured, valuing her at a certain sum; each giving such direction separately, without reference to the interests of others. S. & T. obtained from the Atlantic Mutual Insurance Company a policy by which it insured them, by their firm name, in the sum of $9375, “on account of whom it may concern,” loss, if any, payable to S. & T. The sum so insured was the same proportion of the sum at which the vessel was valued in the instructions to insure, (three sixteenths,) as the interest of the plaintiffs and one F. in the vessel was of the whole. No disclosure was made to the company, at the time, either of the parties or the interests to be insured. A series of similar policies, covering three quarters of the valuation of the vessel, were also taken out by S. & T. in other companies. One third of the premium paid by S. & T. upon the policy issued by the Atlantic Mutual Insurance Company, was charged by them upon their books to each of the plaintiffs and to F.; and about the same time similar charges were made, in such books, against other owners of the vessel, for premiums paid on such other policies upon the vessel, .and accounts were rendered to the plaintiffs and such other owners, from time to time, embracing those items.
Held, 1. That the Atlantic Mutual Insurance Company, by their policy,, agreed to become liable to such persons as S. & T. intended and were authorized to insure; and that they trusted to, and agreed thereby, to rely on the-usual manifestations of such intent by the acts, declarations and relations, of the latter.
2. That entries in the books of S. & T, according to the usual mode of dealing by insurance brokers with their principals, to be transferred, subsequently, into tjie accounts to be rendered to the latter, became substantially a part of the res gestee, and were an admission against their interest, that they themselves, were not the parties insured.
8. That the giving of authority by other owners, and the making ef other policies of insurance, co.uld not affect the admissibility of such entries as evidence, although they might tend to strengthen or diminish their effect as such.
4. That other owners, by employing the same insurance brokers as the plaintiffs did, agreed, substantially, with the underwriters, that such agents should determine to whose benefit policies of insurance made by them on such vessel: should enure; and assented in the same manner to be bound by the usual modes of manifesting the intent of insurance agents, as. to the parties to be-covered by particular policies.
G. That the obtaining of other policies, about the same-tibie; by S..& T. equal
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to the valuation of the interests under their care, thoir charging their premiums to different owners, and rendering accounts containing such charges, made the entire body of entries equivalent to a distribution of all the policies so obtained among the parties insured, within a reasonable time after they were made, by common agents, authorized to insure with whomsoever they pleased.
6. That as regarded the owners, other than the plaiptiffs and F., such entries were made in time to become part of the res gestae, if they were made before any thing occurred to actuate the agents by any other motive than that of discharging their equal duty to all.
7. That such charges against the parties intended to be insured, being made either in the books of the agents or in the shape of the memoranda to be entered therein simultaneously with the giving of their notes for the premiums, such entry of them was sufficiently near in time to the transaction of making the policy, to form a part of the res gesta, to determine whose interest the policies were intended to cover.
(Before Robertson, Barbour and Garvin, JJ.)
Heard December 7, 1863;
decided February 13, 1864.
The subject of controversy in this action is the ownership of two equal separate thirds of a policy of insurance for §9,375, issued by the defendants, The Atlantic Mutual Insurance Company, to the firm of Stanton & Thompson, of which the defendant Stanton is the survivor, on the 26th day of May, 1857, upon the ship Knickerbocker, for one year from the 27th of May, 1857. The company concedes its full liability upon the policy to the parties for whose benefit the insurance was effected. The plaintiffs claim, each, as to one distinct third of the policy j that the same was effected to cover their interest in the vessel, and has always belonged to them. The defendant Fowler, as administrator of Peabody, claims the same two-thirds, under an assignment to him by Stanton & Thomson, with the assent of this company, but without the knowledge of the plaintiffs, in the month of April, 1858. And the company insists that neither of these claims is well founded, but sets up as a defense a supposed interest in the policy in other parties who have never asserted or pretended to any title themselves, and are not parties to this action.
The facts established by the evidence and found by the court, on which the plaintiffs rely, are as follows : The ship Knickerbocker was built in the spring of 1854, and was lost
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by the perils insured against Hay 23d, 1858 ; and during the whole period of her existence the plaintiffs owned each a distinct and separate one sixteenth part of the ship. The firm of Stanton & Thomson- built the ship, as partners and agents, and managed her, as ship’s husbands, till her loss. Their original interest was four sixteenths, which, by a subsequent purchase, was increased to six sixteenths before the loss. The defendant John W. Fowler, was original owner of one sixteenth, and his intestate, Simon- Y. Peabody, of two sixteenths. Peabody was master of the Knickerbocker, until his death, on the 20th of January, 1858, and Fowler retained his own one sixteenth in his own right, and Peabody’s two sixteenths in his representative capacity, until the loss of the ship. The remaining portions of said vessel were owned as follows, when she was built, and from thence until, and at the time of her loss, viz : Bouse Babcock owned two sixteenths, Joshua Aitken and Joshua Aitken, Jr., two sixteenths ; Thomas Collyer, one sixteenth. When the ship was launched, each of the plaintiffs separately, and not jointly with the other, or with any other owner, instructed Stanton & Thomson to insure and keep insured his particular interest, at -a valuation of #50,000 for the whole vessel, and simular instructions were received by them from Fowler, Peabody, Collyer and Babcock. No further directions were given by any owner, respecting the insurance, the manner of effecting it, nor in what company or companies, nor as to the terms upon which it was to be effected. On the 26th day of Hay, 1854, Stanton & Thomson effected, to cover the separate interests of Forgay, Conner, and Fowler, an insurance with the Atlantic, taking from that company a policy dated the 27th of May, 1854, upon the ship Knickerbocker, valued at #50,000, “for the benefit of whom it may concern,” loss (if any) payable to Stanton & Thomson, for one year, at a premium of eight per cent, which together with #1.25, as the cost of the policy, was paid by Stanton & Thomson’s note for #751.25. Immediately upon effecting such policy, Stanton & Thomson charged on-their books of account to Conner, to
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Eorgay, and to Fowler, each one third of the note so given, in the terms following :
“ John Conner, for one sixteenth of above note, in Atlantic, $3,125, at 8 per cent, and policy 42c., .... $250 42
“ William Forgay, for one sixteenth of above note, in Atlantic, $3,125, at 8 per cent, and policy 42c., 250 42
“ John W. Fowler, for one sixteenth of above note, in Atlantic, $3,125, at 8 per cent, and policy 42c.,..........-..... 250 41”
and at the same time charged to each a separate commission for effecting insurance on one sixteenth of the ship Knickerbocker. During the term of this policy, the ship having made an excepted trip to the Grulf of Mexico, Stanton & Thomson paid therefor an additional premium of $93.75, and charged to Conner, Forgay, and fowler, each one-third of that amount, “ For cash paid The Atlantic Mutual Insurance Company, additional premium on one sixteenth ship Knickerbocker,' for using Grulf Ports.” In May,-1855, on the expiration of the policy, the said insurances were renewed for another year, for the same amount, by a new policy, in all respects like the original; and that being done, the premium, cost of policy, and commissions were charged in the same way as before by Stanton & Thomson, one third each on separate one sixteenths, to Conner, Forgay, and Fowler, and having during the renewed term paid to the company an additional premium of one per cent, for the vessel’s taking more than her registered tonnage, this also was charged in like manner to the said separate interests. Again, in May, 1856, on the expiration of the said policy, the same insurances were a second time renewed for another year, by a third policy like the two first, and the same charges were repeated in Stanton & Thomson’s books. During this year another additional premium was paid, and a general and particular average loss occurred, which was credited on the policy and paid. A memorandum of the adjustment being endorsed on the policy by the company’s secretary, as a credit to the policy of the amount adjusted on three sixteenths of
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the ship Knickerbocker. And. this disbursement and receipt were, as in every previous instance, respectively charged and • credited in equal thirds to the same parties. Finally, in May, 1857, on the expiration of the policy last mentioned, Stanton & Thomson renewed the same insurances by taking out a new policy, which is the policy in suit, under which the vessel was lost; and on this occasion, as in the three previous years, the premium, cost of policy, and commissions were charged in the same manner in equal thirds.to the same parties. During this year and before the final loss of the vessel, another loss occurred under the policy and an order for its payment was indorsed on this policy by the company, which was expressed to be on three sixteenths of the ship. This also was credited in Stanton & Thomson’s accounts to the same parties in the same proportion. The plaintiff Conner, in answer to inquiries on the subject, was repeatedly informed by Stanton & Thompson, from time to time, between the effecting of the first and last insurance, that his interest was insured by them in the Atlantic. The plaintiff'Forgay also was frequently informed by Stanton & Thomson that his interest was insured, and upon his applying for his policy on the occasion of the loss of the ship was told by Stanton that his interest had been covered by the Atlantic policy. On the 13th day of March, 1856, Stanton & Thomson rendered to the plaintiff Conner an account current of transact tions between them from May 27th, 1855, to March 12, 1856, charging him as he had been charged in their books, with the one third of their notes paid the Atlantic within that period for.premium and additional premium and cost of policy on one sixteenth the ship Knickerbocker, and commissions as before stated. The account showed a balance against Conner, and soon after it was rendered the balance was paid and the account settled. In like manner similar accounts current were rendered by Stanton & Thompson to the defendant John W. Fowler, on the 8th of December, 1857, and again on the 2d day of October, 1858, of transactions between them from March 14th, 1856, to those dates respectively, in which Fowler is uniformly charged with one third of the premiums and ex
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penses paid by Stanton & Thomson for the several insurances in 1856 and 1857 of his one sixteenth share in the vessel in The Atlantic Mutual Insurance Company, and is likewise credited with one third of the moneys received from the same company in the average losses and adjustments before mentioned. Stanton & Thomson likewise rendered and delivered to the plaintiff Forgay an account current of transactions between them from July 17th, 1854, to December 5th, 1857, in which he is credited and charged in like manner as Connor and Fowler in the accounts rendered to them with one equal third of the respective payments and receipts appearing by their books upon the said policy in The Atlantic Company as upon his one sixteenth of the ship Knickerbocker. On the 30th of May, 1854, Stanton & Thomson insured four other sixteenths of the ship at the valuation of §50,000 in the Sun Mutual Insurance Company, which insurance was renewed by them in the year 1855, in the same company. In 1856, this policy was allowed to expire, and in lieu of it two policies were effected hy them, one in the Great Western, for four twentieths of the vessel, ($10,000,) in the Commercial for one twentieth, ($2,600,) and again on the 30th of May, 1857, these two policies were renewed for one year, and were' in force when the loss occurred. The premiums, expenses and charges upon this line of insurance were uniformly charged by Stanton & Thomson in their accounts, the one half to' Simon Y. Peabody on his one eighth interest in the ship, and the other half to Rouse Babcock on his one eighth interest in the ship, as follows : During the existence of the policy in the Sun Company, one half of that policy to each, and after the policies in the Great Western and the Commercial were substituted for that, Peabody was charged with so much of the Great Western premium, &c. as was the just proportion of the whole amount insured there for his one eighth of the ship, valued at $6,250, and' commissions and charges accordingly, and the rest of that policy and the whole of the Commercial policy are charged to Babcock, and so in like proportions were the sums received from the Great Western and Commercial companies on the policies credited to them. Be-.
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fore his death, Stanton & Thompson rendered to Peabody an account current showing the full details of these charges and credits up to the end'of the year 1857. On the 27th of May, 1854, Stanton & Thomson insured in the Mercantile Mutual four other sixteenths. of the vessel, on the same valuation, which insurance was from year to year renewed by them, partly in the same company and partly in the Globe Mutual, until the time of the loss, and this line of policies was uniformly charged in their accounts to their own one quarter of the ship, and so all the charges and expenses incident to it were charged and the receipts upon it credited. On the sixth of June, 1854, a separate policy for $3,125, being on the one sixteenth, at a valuation of 50,000, was effected by Stanton & Thomson, in the Commercial Mutual, which was annually renewed in the same company, and finally by a policy dated 6 th June, 1857, which was in force at the time of the loss. From first to last, this policy and all the payments' received upon it, were uniformly charged and credited in the accounts of Stanton & Thomson to. Thomas Collyer. The last policy was before the commencement of this action, accepted by Collyer as his own, and no claim appears to have been made by him upon the policy in suit. The policy of the Commercial, dated May 30th, 1857, is held by Rouse Babcock, who accepted it as his own in the distribution made by Stanton & Thomson, after the loss. Of the policies charged in the accounts against the interest of Stanton & Thomson in the vessel, that in the Mercantile has been paid to Stanton & Thomson and cancelled by them. The facts on which the defendant, Fowler, as administrator of Peabody, based his claim to the disputed two thirds of the policy in suit, are thus stated in the twenty-fourth finding of the court: “ On April 9 th, 1858, John W. Fowler, for himself, and as administrator of Simon Y. Peabody, requested Stanton & Thomson to deliver to him the policy covering his and said Peabody’s interest in the Knickerbocker ; Stanton & Thomson thereupon indorsed the policy of the Atlantic Mutual Insurance Company, dated May 27th, 1857, and being the one now in suit, by writing their firm name upon it, and
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delivered it to said Fowler, who thereupon procured the secretary and vice-president of the said company further to indorse on said policy, and to sign with their official signatures a statement in these words, ‘ April 9, ’58. The interest under this policy is hereby transferred to John W. Fowler, Milford, Connecticut, administrator of the estate of S. Y. Peabody, deceased, in part, and for himself in part.’ Fowler, upon the requirment of the said secretary and vice-president, and as a condition of their signing said statement, endorsed at the same time the promissory note of Stanton & Thomson, which had been given to the company for the premium of said policy. And when said note came due, Fowler paid to the company upon account of it, the sum of $204.79 ; and the residue of the note, with the expenses of protest, ($735.06,) was paid by offseting against it the claim upon the company for general average on the three sixteenths of the Knickerbocker, insured by them on her voyage in 1857, from Liverpool to New York, which claim was previously credited by Stanton & Thomson to Conner, Forgay, and Fowler respectively, (one third thereof $245.02 to each.) ”
The assignment of the policy to Fowler, was made by Stanton & Thomson without the consent or knowledge of either of the plaintiffs.
The plaintiffs claim, in their complaint, that the policy issued by the Atlantic Company belongs to them, and to John W. Fowler, individually, and that none of the other owners of the ship have any interest therein. The defendant Fowler claims as administrator of Peabody, and in his own right, to own the policy by virtue of the indorsement of April 9th. The Atlantic Mutual Insurance Company claim that the policy belonged to all the persons named aforesaid, for whom Stanton and Thomson ordered it. They set out the names of the other owners, and.claim that such owners should be made parties to the suit. There is no evidence in the case showing that the plaintiffs, or any owner, ordered the policy in suit, but it appears that Stanton & Thomson, having a certain amount of insurance to effect, viz. $37,500, went to the most
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prominent office, and gave them all they would take, then to the next most prominent, and gave them all they would take, and so on until the whole was covered. The plaintiffs relied upon entries in the books of Stanton & Thomson, charging the premiums and cost of policies to particular parties, to sustain their action. The defendants deny that these entries have anything to do with deciding the question of the ownership of the ■ policies, for two reasons : 1st. They were not made until after the policies were issued. 2d. -The policies were the controlling documents, and Stanton & Thomson could not vary their impo'rt, or change the right of any of the parties thereunder, without the consent of all the parties thereto. They therefore insisted that the entries were improperly admitted as evidence.
Upon the above facts, the referee found as conclusions of law: ' That the plaintiffs, Forgay and Connor, and the defendant Fowler, in his individual capacity, are severally owners, each of one third interest, in the policy issued by the defendants, the Atlantic Mutual Insurance Company, dated May 30, 1857, upon which this action is brought, and are entitled each to the sum of $3,125, being the one equal third part of the money insured by said policy upon said ship Knickerbocker, and to interest thereon as claimed in the complaint; that the defendant Fowler, as administrator of the goods, chattels and credits of the said Simon Y. Peabody, deceased, has no right, title or interest in or to said policy, or the money payable thereon, or in or to any part thereof; that out of the said sum of $3,125, and interest, to which the plaintiff Conner is entitled, as above stated, there should be paid to the defendant Fowler $68.26, with interest, being one third of the amount paid by Fowler on the premium note given for said policy, and that the residue of said sum of $3,125, with the interest thereon, should be paid to the said Conner ; that out of the said sum of $3,125 to which the plaintiff Forgay is entitled, as above stated, there should also be paid to said Fowler a like sum of $68.26, with interest, being another one third of the amount paid by Fowler on the premium note given fdr
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said policy; and that the residue of said last mentioned sum of $3,125,.and interest, should he paid to Forgay ; that upon the payment of the said sum of $3,125, and interest, by the Atlantic Mutual Insurance Company to the said Forgay, Conner and Fowler, respectively, the said Fowler should deliver up the said policy upon which this action is brought to the Atlantic Mutual Insurance Company, to be cancelled ; and that the said defendant should pay to the plaintiff the costs of this action.
Judgment being entered accordingly, the defendants, the Atlantic Mutual Insurance Company, and John W. Fowler, appealed.
T. Scudder, for the Atlantic Mutual Ins. Co. appellants.
J. W. Parsons, for J. W. Fowler, administrator, &c. appellant.
J. E. Choate, for the repondents.

By the Court,

All the original owners of • the ship in question, (the Knickerbocker,) except two, (the Aitkens,) originally authorized and instructed the defendant Stanton and his former partner, James Thomson, Jr. then constituting the firm of Stanton & Thomson, to keep their separate interests in her insured, valuing her at a certain sum, ($50,000.) Each owner gave .this direction separately, without any reference to the interests of others. This fully appears in the testimony and findings by the court. By the death of. Thomson, in March, 1857, and the admission of another, (John) Thomson in his place, a change was made in the com- ' position of the firm, but its business and name continued the same. The policy in suit, and others, were taken out in the same name. In that name accounts were rendered, policies transferred, and the business of the vessel conducted by the new firm as ship’s husbands. There was, therefore, enough evidence of the ratification of their acts, as agents of the

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owners, to warrant the conclusion of the continuance of the authority to such new firm to continue to make insurance on the several interests of the owners. Although it may not he very essential to the rights of parties to determine who was the actual agent, Stanton or the new firm, it relieves the case from embarrassment to consider the insurance agents as the same from the birth to the loss of the vessel.

In May, 1857, Stanton & Thomson, in pursuance of such authority and instructions, obtained from the defendants, the Atlantic Mutual Insurance Company, the policy in question. By it they are insured by their firm name, “ on account of whom it may concern.” Loss if any payable to them. It contains- the usual clause, limiting the liability of the underwriters in case of a prior insurance “ on the premises,” to so much as such prior insurance should fail to cover. The amount insured is exactly three sixteenths of the valuation of the vessel in the instructions to insure, ($9375,) which was the share of the vessel then owned by the plaintiffs and Fowler. No disclosure was made to the company, at the time of making such insurance, of either the parties or the interest to be insured. Only two other policies, each for one tenth of the valuation of the vessel, had then been taken out by Stanton & Thomson, pursuant to the instructions to them. Thus nothing on the face of the contract, or passing between the parties to it at the time of making it, disclosed for whose account they were in fact made. Unless there was some extrinsic evidence of the intention of Stanton & Thomson in making such insurance as to the persons and interests to be covered thereby, it would have covered only the interest of. Stanton himself as an owner. Or if the only evidence were proof of the instructions of all the owners to insure their interests, it might have enured to their joint benefit alone.

Whatever interest, or whoever.was protected by such policy of insurance, it is clear that the rights of any party insured by it were vested when it was made ; they 'could not be ambulatory until fixed by Stanton & Thomson, nor transferred by them as they thought proper, unless possibly they might have

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the right of extinguishing any claim hy rescinding the contract, While it .remained a subsisting contract, nobody could claim any benefit under it, except they were designed to be protected by it at the time it took effect as a binding contract. Nothing, therefore, done or said by such agent, after such rights became so fixed, was admissible to prove a subsequent choice by such agents, of the parties to be covered by it or the extent to which they were to be benefited,- or a transfer by them of such right from one to another 5 including, of course, any°distribútion among the owners in severalty, hy way of separating their interests of policies, if originally made either by their intention or any operation of law, the property of all jointly. If any acts or declarations of Stanton & Thomson, after the making of the policy in question, were admissible in evidence at all, they were only so to establish the original intent in making the policy,- and not to prove subsequent changes of interest. They would, therefore,- be subject to the same restriction as to the proximity of the time of their occurrence, and the mode of making them, as all external conduct when admitted to prove mental intent. They would never, however, reach as far back as a continuous course of dealing by such agents with the interests of the plaintiffs under their instructions to insure would. Such a course might be followed as far back as it was unbroken, to settle the question of intent in the particular transaction.

If the question in this case were whether tlfe insurances were made for the owners jointly,- or severally,- alone, without reference to the persons for whom they were made, the fair presumption of fact, if not of law, would be, that they were not made for them jointly. It is not necessary, however, to discuss at length how far the insurance brokers would have violated their duty if they had made a joint insurance. The question would -still remain in any event, - if the insurances were, in fact, several, who was covered by the policy in question.

It is so well settled that a policy made “ on account of whom it may concern,” covers the interest of all whom it was

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intended to protect, (Crosby v. N. Y. Mut. Ins. Co., 5 Bosw. 369 ,) as to be so stated in elementary works. (2 Pars. Marit. Law, 29-33, and cases cited. 2 Duer on Ins. §§ 8, 9, 21,24, 30.) Two statutes were passed by the British Parliament, (25 Geo. III, c. 44; 28 Geo. III, c. 56,) requiring the names of agents to be inserted in polices, without, however, stating their agency, (Bell v. Gilson, 1 B. & P. 346, n.) in order to remedy the evils of an earlier custom, of delivering policies in blank. (3 Steph. N. P. 2094, 2095.) Such a form as the present, answers the ends of such statutes. An authority to insure, tends to confer on those giving it the benefit of an insurance merely, by the evidence it affords of intent. It is only when the policy extends to those concerned at the' time of the loss, that subsequent assignees are covered. (Rogers v. Traders’ Insurance Co., 6 Paige, 583.) In this case, the protection of the policy is confined to those interested when it was made, and its applicability turns upon a question of intention in fact. If, then, it was intended to protect, not all, but only one or more, the question to be solved is, who those were.

The individual interest of the defendant Fowler is admitted by the plaintiffs to be covered by the policy ; the only question is as to the remaining two thirds, whether it belonged to the estate represented by Fowler (Peabody’s,) or to the plaintiffs. It is not necessary now to consider any new rights acquired by such defendant, as administrator against his co-defendants, the company, by their indorsement on the policy before the loss, which declares the interest under it to be transferred to such defendant, as .administrator. They could not bar the plaintiffs’ claim ; the pleadings are not framed to try any. issue upon them, and any infringement of them is not .the same cause of action as that set out in the complaint, since that grows wholly out of the original policy. The right of such defendant, as administrator, if any, must rest, not on the transfer to him in April, 1858, but to the right of his intestate under it, when made.

There was no evidence of any intention by Stanton & Thom

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son to protect Peabody's interest, exclusively, or at all; on the contrary, an entry was made in their books, charging him with premiums of insurance paid by them on other policies, by other companies, in like form ; which was carried into an account rendered at some time after the death of Peabody, and before April, 1858, to the defendant Fowler, as his administrator. ’ The only evidence of any intention is the transfer of the policy in question, nearly a year after it was made, to such administrator. That was too long after the transaction, to show the intent with which it was. .made. The only debatable question of fact, in regard to intention, is, if the policy in question was not made for all the owners jointly, was it intended to be made by Stanton & Thomson for the plaintiffs, and Fowler in his own right alone .

Stanton testified, it is true, that the policy in question was effected on account of three quarters of the ownership of the vessel represented by himthat he took it out for such three quarters; and effected other policies on the same account in the same year. In a previous part of his testimony, he hád, however, stated that he took out the original policies on such three fourths on the same day, and gave to each insurance office all the amount of risk they would take; hut did not state to them for whom he was acting, nor any interest as making up the line of risk § while the companies only stated what account they would take. When the policies ran out, he renewed them, with the same companies, if they would take the same amount; but he never said any thing, to any company, “ about the interest in the three quarters " he wished to cover. As this testimony was given in 1860, respecting transactions from three to five years previous, such witness might have forgotten some of the facts ; hut were such statements hostile to the plaintiffs' case, recourse may be had to other statements of Stanton, as well as his acts, to show that the completeness of his testimony was not perfectly reliable.

Besides, the fact that the amount of valuation in the policy in suit corresponded precisely with the share of the plaintiffs and the defendant Fowler, of interest to he insured, the plain-'

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tiffs adduced as evidence of the policy in question being obtained to cover such interest, a series of policies alike in form and contents, except as to the duration of the risk, beginning •with the first one obtained after the firm of Stanton & Thomson were directed to insure, the time of the commencement of the risk in each policy being the same as that of the termination of the preceding one. The first of such series was taken out in May, 1854. On the same day, Stanton & Thomson took out a similar one from the Mercantile Mutual Insurance Company, for a sum equal to four sixteenths of the valuation of the vessel in question ($12,500.) Three days afterwards, they took out a like one for the same sum from the Sun Mutual Insurance Co. ($3125,) and in June following, they took out a like one, for the same sum, from the Commercial Insurance Company ; making in all twelve sixteenths, or three quarters of the valuation of the vessel. It can hardly be doubted, where two policies on the same risk, for the same amount, by the same underwriters, continue such risk by its commencement in the second, at the period when the first left it, and thé first is proved to have been made for the benefit of particular insured parties, that the second was made for the same parties, unless some other evidence disproves it, and reconciles such coincidence with a different state of facts.

The only difficulty in the proof in the cause that the plaintiffs were the parties intended to be protected by the policy in question, when it was made, grows out of the nature and admissibility of the evidence offered for the purpose. Most of it consists of entries made in the mercantile boobs of Stanton & Thomson, by their book-keeper, who subsequently became a partner in the firm (John Thomson.) Three of them were charges against the plaintiffs, separately, and the defendant Fowler, of a third of the premium note given by Stanton & Thomson to the defendants, The Atlantic Insurance Company, for the first of the series of policies issued by them for three sixteenths of the valuation of the whole vessel. They were, however, not made until July, 1854, two months after the

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date of the policy. That delay, however, is accounted for by the book-keeper in several ways. In the first place, the policies were sent to the office of Stanton & Thomson before the premium notes were given, and the delay in signing the notes was owing to a press of business upon Mr. Stanton. Until the premium notes were given, the book-keeper made memoranda of the char-ges on loose slips of paper, from which he entered, them in the books, after the notes were given, and then destroyed such loose notes. He did not always make the entries immediately after the notes were signed; but allowed the memoranda sometimes to accumulate' for two or three weeks, before, from press of business, he was able to enter, the charges on them, and sometimes he waited until all the notes were signed, in order to make the-entries as near together as possible. As Stanton testified, the entries had to be made, because the notes were given, and had to be charged to some one ; but he left it to the discretion of his bookkeeper to make such entries as he saw fit, as to insurance. He used to take a general glance at his books, but never examined them minutely, and might hare seen the entries just spoken of at any time within four years. He “never knew, until after the loss of the ship, to what specific interests the various policies were charged,” but always had an idea of their general form.

At or about the time of charging the plaintiffs and the defendant Fowler with one third of the premium note given to the defendants, The Atlantic Company, in July, 1854, similar charges were made, under the same circumstances, ine the books of Stanton & Thomson, against other owners of such vessel, for premiums of insurance paid to other underwriters, on other policies, for other sums, on such vessel. Most of the charges so made, were contained in accounts • rendered by Stanton & Thomson to such various owners, and received without objection. Their account with the plaintiff Forgay, not rendered until 1857, or 1858, contained charges for one third of premium notes given to the defendants, The Atlantic Insurance Qompg-ny, for policies in every year for the same

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amount. They rendered no account to the plaintiff Conner, until March, 1856, when they rendered an account, embracing items only as far back as May, 1855, but -including in it a charge for one third of a premium note given to such defendants for a policy during that time. A separate integral commission, and not part of an aggregate commission, for effecting insurance was charged against each owner in his account.

The objection made to the introduction of such entries on the trial was, that they were mere declarations of the members of the firm of Stanton & Thomson, made after the policies were completed, and the rights of the parties fixed, when they had lost all power to interfere with such vested rights, or transfer them from one to another. This objection, I think, is founded upon a misconception of the character of such entries ; they are not declarations amounting to mere admissions ; but are outward manifestations of the intent of the agent, designating the owners and interest intended to be insured. It is very clear that it was part of the duty of the agents, as insurance brokers, to designate to their principals, in some way, the persons and interests intended to be insured. They might have done it by announcing it to the underwriters when the policy was made, or to the owners intended to be insured, forthwith ; yet the one wonld have been but a mere oral statement, and" the other a mere admission. By charging the amount to certain parties, they admitted, at least as far as they were concerned, that such parties were those intended to be insured ; and if Stanton & Thomson had received the amount of the polipy, such entries would have been conclusive against them,- unless .they could show some mistake. The plaintiffs had nothing to do with the fact that the same agents were employed by other owners to insure their interest. They could not insure for all of 'them jointly on such authority, or charge for payments or liabilities for them jointly, or even for a premium of insurance paid on a joint policy. (McCready v. Woodhull, 34 Barb. 80 .) So long as the policies were taken in the form in which they were, there was no other mode pf earmarking them, except either by a declaration of

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trust, which would have been, open to a similar objection, or the more simple mode of charging the premiums to the parties intended to be covered. The question is not whether such entries were good evidence against the other owners to prove that they were not included in the policy in question, but whether they were evidence against the underwriters to prove that the plaintiffs and Eowler alone were. The company, by their policy, agreed to become liable to such persons as Stanton & Thomson intended, and were authorized to insure, and they trusted to, and agreed thereby to rely on usual manifestations of such intent by the acts, declarations and relations of the latter, which would naturally alone constitute its evidence. Entries in their books according to the usual mode of dealing of insurance brokers with their principals, to be transferred into their accounts rendered, was one of the most natural. and easily anticipated of such acts or declarations. They became substantially, therefore, part of the res gestee, unless made at a time, or under circumstances indicative of a motive not necessarily connected with the duty of the agents to their principals or the company ; because to a certain extent they were bound to the latter not to do or say any thing operating by way of evidence to produce a change of the parties insured, without the consent of the company. .Without the proof of authority from other owners to Stanton & Thomson, to insure their interest, and of other insurances made by them on the same vessel, these entries would clearly be proper evidence to charge Stanton & Thomson, and recover from them the amount of the policy, if they had received it; and it was an admission that they were not the parties insured. If all parties had been dead, they would have been admissible as entries against their interest. (Arms v. Middleton, 23 Barb. 571 .) Authority given by other owners, and other policies of insurance made, could not affect the admissibility of such entries as evidence, although they might strengthen or diminish their effect as such. Other owners, by employing the same insurance brokers as the plaintiffs, agreed equally with the underwriters, that such agents should determine to whose benefit the polir
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cies made by them should enure, and agreed in the same manner to be bound by the usual modes of manifesting the intent of the agents as to the parties to be covered by particular policies. Had it been any other species of contract, in which its subject was deficient in an earmark, such as stock bought, could there have been any doubt, when several orders were given simultaneously to a stock broker to buy parcels of the same stock for different principals, that charges in his books against particular principals, for the price paid by him, made simultaneously with the purchase, would be good evidence in favor of the parties entitled to each parcel P Without proof of some intention as to the parties to be insured, the company would not be liable at all; and if proof of authority to insure is evidence of such intention, the selection by the agents, made cotemporaneously with the insurance, is good evidence as between the principals to be insured. Had the old forms of pleading been observed, the action must have been brought at law in the names of Stanton & Thomson, (Jefferson Insurance Company v. Cotheal, 7 Wend. 73 ;) and proof of authority from any one having an interest equal to that insured, would have enabled them to recover. In the distribution by Stanton & Thomson of the proceeds of such recovery, all parties would be bound by the declarations of their common agent, made at the time. The Atlantic Insurance Company, at least, were not prejudiced by the introduction of such entries, and against them they were admissible to show that the agents, by the policy, were insuring an interest they were authorized to insure. I am, therefore, strongly of opinion that the character of the entries, and the persons by whose direction they were made, did not render them inadmissible, if the time and mode of making them did not.

It is said, however, that such entries were made long after the transactions to which they relate, and not cotemporaneously, so as to be part of the res gestee. Perhaps the transaction, so far as it regarded the company, did not embrace quite as much of the conduct of Stanton & Thomson or other parties, as when it included the relation between the plaintiffs- and Stanton &

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Thomson, or the latter and their other employers. So far as the company were concerned, it was enough that the agents had principals interested in the vessel, whom they were authorized to insure; hut as regarded the plaintiffs and their other employers, the agents were hound to elect which should he covered by the policy, and do some act to manifest such election ; and that was done by charges against the separate parties, and rendering accounts containing them. The making off other policies about the same time, equal to the valuation of the interests under the case of Stanton & Thomson, charging their premiums to different owners, and rendering accounts containing such charges, make the entire body of entries amount to a distribution of the policies among the parties insured by common agents, authorized to insure with whomsoever they pleased, within a reasonable time. To prevent any mistake until the whole were insured, the agents were entitled to insure each interest severally as they pleased, and discriminate'between the parties ; and although it might not have been part of the res gesten, so far as the making of the contract of insurance was concerned, it was, so far as securing it for the benefit of a particular principal was concerned; which both the company and their employers permitted to be done by allowing the contract to be made in an indefinite form. As regarded the other owners, such entries were made in proper time, so as to become part of the res gesta, if made before the agents could be supposed to have had any other motive than discharging their duty to all.

But even if such entries, in order to be admissible against the insurance company, must be so near in time to the transaction, of making the policy binding, so far as they were concerned, as to. form part of it, the evidence establishes that they were so. The policies of insurance were indeed placed in the hands of the insurance brokers, before their notes were given for the premium, but it was not binding until such notes were delivered. Charges were made against the parties intended to be insured, as soon as the notes were given, either in the books of the agents, or in the shape of memoranda to be copie

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therein. The cause of delay in giving the notes, was a press of business and the cause of delay in making the entries was a press pf business on the part of the book-keeper of the agent, or his desire to make all the entries simultaneously. Stanton’s testimony, shows that each note was to be charged to separate owners, and that he armed his book-keeper with the power of selecting the parties to be insured by each policy; but the whole evidence establishes that each charge against owners insured was virtually simultaneous with the giving of the premium notes. If such entries were at all admissible, to prove for whom the insurance was made, they certainly were near enough in time to the making of the contract, to form part of the res gestee. The lapse of a brief interval of time, so short that it may be fairly inferred that the declaration or act was part of the transaction, or was intended to modify it, does not exclude an occurrence part of the res gestee, particularly where intention is involved. (Selin v. Snyder, 11 Serg. & Rawl. 319 , 323. Tompkins v. Saltmarsh., 14 id. 275. Boyden v. Moore, 11 Pick. 362 . Handy & Tull v. Johnson, 5 Md. Rep. 450 .) Declarations of the reason for trusting a party, made four months afterwards, have been held admissible. (Fellows v. Williamson, 1 Mood, & Mal. 306.) Indeed there.seems to be no good reason why the language of L. Denman, Ch. J. in Rouch v. G. W. Railway Co. (1 Q. B. Rep. 51, 61,) in regard to acts of bankruptcy, where intention is involved, should not be applied to all cases of intention. He there says : “ The nature and strength of the connection (of the admission,) with the act, are the material things to he looked at, and although concurrence of time cannot but always be material evidence to show the connection, yet it is by no means essential.” The same principle has been applied to book entries, made in order to charge another. (Curren v. Crawford, 4 Serg. & Rawl. 5 .)

These remarks are applicable to the policies issued in 1854. The policies of the three following years, (1855, 1856, and 1857,) connected with the accounts rendered by Stanton & Thomson, and delivering of some of such policies to other

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owners by whom they were accepted, and rendering of accounts to the plaintiffs and Fowler, embracing their shares of the premium notes given for the insurances by the Atlantic Company, strengthen the inference as to the design of the insurance agents, and bear out the conclusions of the learned judge before whom the case was tried.

Singularly enough, although numerous facts are contained in the findings of the court at special term, which are evidence merely of the main important fact, to wit, for whom the policy in question was intended to be made ; that fact is not distinctly stated. But the learned judge has stated as a conclusion of law in his decision, that the plantiffs and Fowler were each owners of undivided third parts of the policy in question. His judgment, therefore, can only be sustained by assuming that the policy in question, when it was made, was intended by Stanton & Thomson to protect such an interest. And as the facts proved tend to establish such an intention on their part, it may be assumed that he found it to have existed at the time of making the policy. He could not be presumed to have found that the parties before named became such owners by virtue of any transfer by the agents for making insurance, since all the policies must have been made, either for the benefit of Stanton alone, to cover his interest, or of all the owners of the vessel in question who authorized them to insure, or of such as they charged severally with the amount of the premiums of insurance; and could not be diverted by such agents from them, without their consent. And the testimony is amply sufficient to exclude Stanton and any other owner, except the plaintiffs and Fowler, from being intentionally insured by the policy in question.

With these views as to the nature and origin of the plaintiffs’ rights, it will not be necessary to say much of the power of Stanton, the insurance company, or Fowler, to alter theiq without their consent, which they clearly could not do. J do not, therefore, see how any new rights of the defendant Fowler, - as. administrator, under the indorsement of the company, can come into issue or be litigated or determined in this action.

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They were no part of the case of the plaintiffs, were utterly immaterial, and formed no defense, unless such appropriation of the policy, destroyed the plaintiffs' original rights, which it could not. It does not appear that the plaintiffs asked for any judgment on that point, or urged it. It is entirely a question between the defendants. Even Fowler, in his answer, only claims the benefit of such policy as being appropriated to him by the act of his agent, with the consent of the underwriters. The defendant Fowler, as administrator, would have been entitled to have the judgment modified by striking out any part which had adjudged that on such indorsement no new contract arose in his favor; but there is no such adjudication in fact, and he is not precluded from an action against the company on such indorsement, if so advised.

All the exceptions to evidence, more or less involve the principles already laid down, and must therefore be overruled. The judgment must be affirmed, with costs.

Cases cited