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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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[Signed,] JACOB SULGER, JR., President."

The learned judge charged the jury, that the plaintiffs were
entitled to recover, and that the loss was covered by the policy ; the
vessel being at the expiration of the year on a voyage to Europe,
and not to her port of destination in the United States.

The jury found, accordingly, for the plaintiffs.

The case now came before the court upon a motion for a new
trial.



251 SUPREME COURT [Dec. Term,

[Eyre v. Marine Insurance Co.]

ncoci-i *Mr. Scott, in support of the motion.

One year is the extent to which any insurers go ; and
that is a heavy risk ; it might do as to sea risks ; but there are
many others in the policy subject to great uncertainty and change.
One year is a very long period for what is called a time risk. The
order of insurance is so framed as to cover a risk after the year if
on her return to the United States ; and the policy was so made.
On the 10th of November 1838, she was on her voyage from Rio
de Janeiro, to the island of Jersey, and while on her voyage two-
thirds or three-fourths of her passage over, she sustains a loss. The
company, before the loss occurred, apprised the plaintiff of the con-
struction of the policy, and the plaintiff might have had it corrected
or got a new policy. Until the 10th of November 1838, there was
no terminus a quo or ad quern. But then her terminus a quo was
the precise spot where she was at noon of that day ; and from that
spot she was to be insured until she arrived at her port of destina-
tion in the United States. There was the terminus ad quern. I
say, then, if the vessel was not bound to a port in the United States,
she was on a voyage not insured, going to Jersey for orders from
her freighters, and those orders were for Altona. So that in sail-
ing from Rio de Janeiro she did not even contemplate a voyage to
the United States. The language amounts to a warranty that she
shall, on the 10th of November 1838, be on a voyage to the United
States. Barker v. Phoenix Insurance Co., 8 Johns. 307, "good
American ship Rodman," is a warranty that the ship is American.
Woodbridge v. Boydell, Doug. 16. if a vessel is sailing on a voyage
not within the policy, the policy don't attach. The voyage the
Delight sailed was to Jersey : the voyage insured is from a terminus
a quo to the United States. Way v. Modigliani, 2 Term Rep. 30;
Forbes v. Church, 3 Johns. Cas. 159. If ours is not the true con-
struction it is a contract of insurance forever ; and when is the
premium for the time beyond the year to be paid ? 10 Wend. 28 ;
3 S. & R. 25.

Mr. Meredith, contra.

This was what is called a freighting voyage ; i. e. to go abroad
and get a cargo from place to place as she could. It is very com-
mon to make such voyages and insurances ; and companies under-
stand they are to see the vessel back to the United States. She is
insured from twelve months, &c., and till moored twenty-four hours
in safety. This is the original term, and would have covered her
until arrived and in port, without the clause inserted. This clause
of the twenty-four hours is different in different insurances. On
the other point, it is clear she had a port of destination in the
United States as she was an American vessel. The point is,
whether on the 10th of November 1838, she was bound to proceed



1840.] OF PENNSYLVANIA. 251

[Eyre v. Marine Insurance Co.]

to the United States, or could prosecute another voyage. The
policy was entered *into with their eyes open ; it could have r*oco
been got elsewhere. The time of paying the premium is ^
provided for in the policy. As to the policy lasting forever, there
is no reason why it should not. In Cleveland v. Union Insurance
Co., 8 Mass. 308, this difficulty was raised ; but it was held that
it meant sailing backwards and forwards. In Putnam v. Ward, 3
Mass. 481, it was said that the owner must, at every point, put the
vessel in a seaworthy condition. If she is compelled on the 10th
of November 1838, to return to the United States, she has not the
liberty of the globe, as the policy gives her. It would limit her to
a voyage to South America and back ; for that took all her time.
With liberty of the globe, shows that they could not fix the destina-
tion of the vessel, or the nature or direction of the voyages, but
must depend on contingencies, picking up cargoes along the coast.
It Is clear from the policy that she was going to a remote port, and
not a neighboring one. The terms, "if at sea," have been con-
strued very strictly against the insurers, and a construction made
to extend the policy ; being words not meritorious or beneficial to
the insurers. 14 Mass. 31, held to embrace a vessel lying in port
under capture. Bowen v. Hope Insurance Co.. 20 Pick. 275.
S. P. As to port of destination or discharge, it means ultimate
discharge. 8 Mass. 527 ; 1 Com. 194, 239, 333 ; 4 Doug. 38 ; 8
Pick. 14: which much resembles this case, and where the same
arguments were used by the counsel. You would, by the defend-
ants' construction, compel the plaintiffs to have their vessel on a
voyage to the United States, at the expiration of the twelve months,
which would take away the liberty of the globe. Cogshall v. Am.
Ins. Co., 3 Wend. 283, other goods allowed to be substituted.
Less than 5 per cent, would insure a voyage to South America and
back. 2 Str. 1213, twenty-four hours in good safety, construed in
favor of the assured. 8 Barn. & Cres. 119; s. P. 11 Johns. 356;
this clause omitted.

Mr. Scott, in reply.

We informed them of our construction before loss, so that they
ought not to charge us with waiting till loss. Moored in twenty-
four hours refers to the termination of the voyage insured, and the
question still remains what that is. The warranty of seaworthiness
only applies to the commencement of the voyage insured. To be
sure, she must repair if in port, the damage incurred ; but the
insurers must show, if loss occurred, that it happened from neglect
to do this.

The opinion of the court was delivered by

ROGERS, J. This was an action on a policy of insurance on the



262 SUPREME COURT [Dec. Term,

[Eyre v. Marine Insurance Co.]

brig Delight, for and during twelve calendar months, commencing
on the 10th of November 1837, at noon, and ending at the 10th
*2 f >Tl ^ November 1838, at noon, with liberty of the globe ; *and
-" if at sea at the expiration of the said twelve months, the
risk to continue at the same rate of premium until her arrival at
her port of destination in the United States. The policy further
states, " beginning the adventure when the said vessel, &c., at and
from, &c., for twelve months, from November 10th 1837, at noon, as
aforesaid, and so shall continue and endure, until the said vessel shall
be safely arrived at November 10th 1838, at noon, with liberty of
the globe, as aforesaid, and until she be moored twenty-four hours in
good safety." The insurance was effected under the following order.

" Insurance $8500 on the brig Delight, Carmick master, valued
at that sum, for and during the term of twelve calendar months,
commencing this day at noon, with liberty of the globe ; and if at
sea at the expiration of said twelve months, the risk to continue at
the same rate of premium until her arrival at her port of desti-
nation in the United States ; to return a proportional rate of pre-
mium for time not used, and no loss. Average loss to be adjusted
each passage.

Premium, 5 per cent, for twelve months.

EYRE & MASSEY.
Philadelphia, November 10th, 1837.

N. B. If the vessel is sold previous to the expiration of said
twelve months, a proportionate rate of premium to be returned."

The brig sailed from Philadelphia, in November, 1837, for South
America, for the purpose of freighting, and took a cargo on board,
entirely on freight, at Rio Janeiro, in South America ; and sailed,
on the 9th of October 1838, for the island of Jersey in the British
Channel, for orders. On the 10th November 1838, she was at sea,
on a voyage to Jersey, and when at sea, on the said voyage, viz. in
December 1838, encountered heavy gales, which did great damage,
and compelled her to put into Falmouth (England), for repairs.
She was there repaired, and sailed on her voyage for Altoria, where
she arrived in April 1839; and after discharging her cargo from
Rio Janeiro, took on board another cargo, entirely on freight ; and
on the 29th of April 1839, sailed from Altona for New Orleans,
where she arrived.

The construction put upon the contract by the underwriters, (of
which they, in due time, notified the assured), is, that although the
vessel was at sea on the 10th of November 1838, yet, as she was
not destined to a port in the United States, the risk terminated on
that day. The assured, on the contrary, insist that the underwri-
ters were bound for her safe arrival at a port m the United States.



1840.] OF PENNSYLVANIA. 253

[Eyre . Marine Insurance Co.]

The difference in the construction is a very marked and wide one.
If we adopt the latter construction, the policy is an insurance for
an unlimited time, which may endure, at the will and pleasure of
the assured, during the life of the brig. As it terminates only on
her arrival at a port in the United States, if the owners think
proper to prevent her return, the risk must continue. That such
an insurance may be made, unlimited in point of time, with liberty
of the *globe, cannot be doubted, if such appears to be the r*9/ri
intention of the parties. For this, the underwriters will in- '
crease the premium in proportion to the increase of the risk. But
where such is the wish of the assured, it ought to be clearly
expressed ; at least the intention should not be left in doubt in the
proposals, the words of which are not to be taken most favorably
for themselves. It is also equally clear, that the parties may con-
tract for a limited or specified time, with liberty of the globe,
during that time. This appears to have been a trading or freight-
ing voyage of the latter description. It was a trading voyage with
liberty of the globe, during the time of one year, and no longer ;
if the contract had ended at the first clause, the meaning of the
parties would not have been even doubtful. Within that period,
the owners have liberty to go to any part of the world ; and it was
supposed to be a time sufficiently prolonged, to answer all their
purposes. But the contract is supposed to be enlarged by the sub-
sequent part of the policy. But it seems very clear, that this was
inserted, because it was supposed the vessel might be at sea at that
time, on her voyage home, and therefore an insurance might be
necessary until she was safely moored in some port of the United
States. No reason has been suggested, and none occurs to me,
why any precise period was fixed, if the intention of the parties
was, as the assured contends. It is not necessary to fix the rate of
premium, nor the time when the premium was to be paid ; nor have
apt words been used to express such intention. Indeed, if such
was the meaning of the assured, they have been most unfortunate
in the language used in the contract. The plaintiffs construction
strikes time out of the agreement ; but this, as is apparent from
the whole contract, is an essential feature of it ; and without which,
the underwriters may have been unwilling to take the risk at all,
or if taken, it would have enhanced the premium. It is very cer-
tain, as a general rule, that the older and more exposed the ship,
the greater the risk ; for although it is the duty of the owners to
keep the vessel in good condition, yet the law implies no warranty
of seaworthiness, except at the commencement of the voyage. For
when a vessel which has received damage from a peril insured
against, puts into port to repair, the captain or agent who superin-
tends the repairs, is only bound to use due diligence. It is not
necessary at all events, that the vessel should be so repaired as to



254 SUPREME COURT [Dec. Term,

[Eyre v. Marine Insurance Co.]

render her seaworthy. A vessel having liberty of the globe, may,
and often does, touch at a port, or she is driven into a port, where
the necessary repairs could not be made, and yet the underwriters
would be liable. Peters v. The Phoenix Insurance Company. 3
S. & R. 25. Time was inserted in the agreement, to fix the period
of the extraordinary risk incurred by the underwriters, in their in-
surance, with liberty to trade in any part or parts of the world, to
be prolonged only if the vessel was at sea, on her return to her
*9rr-i port of destination in the United States, at *the time spe-
-" cified. It has been asked, when the additional premium is
to be paid; to which it has been answered, when the risk terminates,
viz., when the owners think proper to order the return of the brig.
This necessary consequence, from the latter construction, will be
very injurious to the interests, and it may be inconvenient to the
underwriters, and is an argument adverse to the pretensions of the
assured.

There is another clause of the policy, which provides that the
insurance shall continue and endure until the vessel shall be safely
arrived at November 10th 1838, at noon, with liberty of the globe,
and until she shall be moored twenty-four hours in good safety.

It is contended, that if the vessel was at sea on the 10th Novem-
ber 1838, destined to any port whatever, the underwriters insure
her until her arrival at that port, and until she shall be moored
twenty-four hours in good safety. But this must be taken in con-
nection with the preceding clause, and was intended as an extension
of the insurance from that time, provided she was at sea, within
the meaning of the policy, prosecuting her voyage to her port of
final destination. No resemblance is perceived to the cases of
Wood v. New England Insurance Company, 14 Mass. 31, or Bowen
v. Hope Insurance Company, 20 Pick. 275, where the meaning of
the words, "at sea," in a policy of insurance, was discussed. It was
there held, under the circumstances stated, that a ship was at sea,
within the fair construction of the contract, although not literally
so, at the time of the loss. In the one case she was in a British
pore, whither she had been carried against the will of the master ;
and in the other, before the expiration of the year, she had been
prevented from proceeding on her voyage from Bangor in Wales to
Boston. In consequence of head winds she came to anchor, and
was unable to get out of the straits, although she attempted to do
so for several successive days, until after the expiration of the year.
It was held, that she was at sea at the termination of the year,
within the meaning of the policy. The question there decided, does
not arise here. The term, at sea, may have different senses,
according to the connection in which it is used. And in this case,
we must look to the subject-matter of the contract, and to the inten-
tion of the parties, which was to provide for the contingency of the



1840. J OF PENNSYLVANIA. 255

[Eyre v. Marine Insurance Co.]

vessel being at sea, on the expiration of the year, on her return
voyage: it was prudent to provide for a loss which might accrue at
any time between that period and her being safely moored in some
port in the United States. This stipulation made the owners abso-
lute masters of all the movements of the brig, for and during the
term of one year ; exacting from them, however, that if it was
prolonged, it was only on the condition she was at sea, on her
voyage to the port of her final destination.

We determine this case in the words of the contract, without
regard to conflicting assertions ; for we know of no usage which
*can control its construction. It is very probable, if the r*9-c
question was referred to underwriters and insured, each ^
would give the contract the construction most favorable to them-
selves.

New trial awarded.

Brought before the court again, 5 W. & S. 116.



[PHILADELPHIA, FEBRUARY 15, 1841.]

Tyson and Another against Dorr and Another.

IN ERROR.

An assignment for the benefit of creditors stipulated for a " full and com-
plete release of their respective claims" against the assignors within a certain
time. A mercantile firm, creditors of the assignors, executed a general
release under seal, and added to the signature the following words : " on con-
dition that the assignment pays over 25-100 on our claim." Held, that the
condition was void, and the release single and absolute ; and that it extin-
guished the debt.

ERROR to the District Court for the City and County of Phila-
delphia.

This was an action brought by S. F. and F. F. Dorr against
Samuel H. Tyson and Charles M. Tyson, trading under the firm
of Tyson & Brother, upon two promissory notes drawn by the
defendants in favor of the plaintiffs ; one dated the 18th of the 8th
month 1881, at seven months, for 3780.40, and the other dated
the 1st of the 9th month 1831, at seven months, for $1209.13.

The circumstances upon which the defence was founded, were as
follows :

On the 27th of February 1832, the defendants executed an
assignment for the benefit of creditors in the following words:

" This indenture, made the twenty-seventh day of February
1832, between Samuel II. Tyson, and Charles M. Tyson, trading



257 SUPREME COURT \_Dec. Term,

[Tyson c. Dorr.]

under *the tp ni of Tyson & Brother, of the city of Phila-
delphia, of UK- one part, and Michael Drury of said city,
of the other part. Whereas, the said Samuel H. Tyson, and
Charles M. Tyson, trading under the firm of Tyson & Brother,
are indebted to several persons in sundry sums of money, and are
possessed of certain estate, which they are desirous to convey for
the benefit of such of their creditors as shall execute to them a full
release of their respective claims, within thirty days from the date
hereof, at noon, that is to say, on or before the twenty-seventh day
of March, A. D. 1832. Now this indenture witnesseth, that the
said Samuel H. Tyson and Charles M. Tyson, for, and in consid-
eration of the premises, and also of one dollar, to them in hand
paid by the said Michael Drury, at or before the ensealing and
delivery hereof, the receipt whereof is hereby acknowledged, have
granted, bargained, sold, assigned, transferred, and set over, and by
these presents do grant, bargain and sell, assign, transfer, and set
over, unto the said Michael Drury, his heirs and assigns, all and singu-
lar, the estate, goods, chattels, moneys, credits, and eifects, what-
soever and wheresoever, of them, the said Samuel H. Tyson and
Charles M. Tyson, jointly and individually, and all the estate,
right, title, and interest, property, claim, and demand, of them,
the said Samuel H. Tyson and Charles M Tyson, either jointly or
individually, of, in, and to the same: to have, to hold, take, re-
ceive, and enjoy the hereby granted and assigned property, to the
said Michael Drury, his heirs and assigns, upon this special trust
and confidence, nevertheless, that the said Michael Drury shall
collect, as soon as possible, the outstanding debts, convert certain
goods, if necessary, into money, apply it as follows, and distribute
the remainder of the goods in manner and form following, that is
to say, that he, the said Michael Drury, shall collect such of the
debts as are collectable, and pay the following individuals the
respective amounts mentioned, if the debts collectable are suffi-
cient; if not, then the said Michael Drury shall sell, at auction,
or otherwise, so many of the goods as may be necessary to make
up the deficiency, to wit: the following individuals, and the
amounts mentioned. To the said Michael Drury, thirty-three
hundred and seventy-seven dollars, ($3377), to Morgan James,
one thousand dollars, ($1000), to Samuel C. Sheppard, eight hun-
dred dollars, ($800), to Jennings, Thomas, Gill & Co., four hundred
anh twenty-nine dollars, ($429), to O'Brien & Dunbar, six hundred
dollars. ($600), to Johns, Downing & Eckert, five hundred dollars,
($500), to G. B. and J. B. English, two hundred and fifty dollars,
($250), and for store and house rent, one hundred and fifty dol-
lars, ($150). And upon this further trust, that after paying the
sums above mentioned, all the goods afterwards remaining in the
store-house of Tyson & Brother, and all the goods deposited at



1840.] OF PENNSYLVANIA. 257

[Tyson v. Dorr.]

auction, and in the hands of individuals, belonging to said Tyson
& Brother, shall be distributed, at cost prices, to such creditors as
shall sign a full and complete release of their respective claims
against the said *Tyson & Brother, within thirty days, that I-*OKQ
is to say, on or before the twenty-seventh day of March I
next, at noon. The said distribution to be made in proportion to
the amount of debts, without partiality, and by any two competent
and disinterested individuals, to be appointed by the said Michael
Drury; which said individuals shall have the list of creditors
before them, who shall have executed the release aforesaid, and
allot to each creditor a just proportion of the saleable, and unsale-
able goods on hand. And the said Michael Drury, if any surplus
remain, after paying the said several demands and debts, and the
just and necessary expenses of executing this trust, shall pay over
the same to the said Samuel H. Tyson and Charles M. Tyson, in
equal proportions, or to his or their executors, administrators, or
assigns. And they, the said Samuel H. Tyson and Charles M.
Tyson, hereby make, and appoint the said Michael Drury, his heirs
and assigns, to be their attorney, irrevocable, to collect the debts
and demands due to them, make sale of the goods and property,
and in general all such acts, matters, and things, for them, and in
their name, to do, as they might or could do were they personally
present."

A release in the following words, was executed by several
creditors.

"Whereas, Samuel H. Tyson and Charles M. Tyson, lately
trading under the firm of Tyson & Brother, did on the twenty-
seventh day of February, A. D. 1832, execute an assignment of all
their property, in trust for the benefit of such of their creditors as
should sign, seal, and deliver to them, a full and complete release,
of their respective claims, within thirty days from the date hereof,
that is to say, on or before the twenty-seventh day of March next,
at noon :

" Now, therefore, in consideration of the premises, we do hereby
resign, release, and forever extinguish, any claim, or claims, which
we, or either of us, in our own right, or the rights of others, may
have against the said Tyson & Brother, either such claim or claims
as are now due, or such as may hereafter become payable.''

The release was executed under seal by the plaintiffs on the 26th
of March 1832 ; and the following words were added to the signa-
ture of the firm : " On condition that the assignment pays over
25-100 on our claim."

The cause came on for trial, before Stroud, J., on the 5th of
November 1839, when the release was given in evidence on the
part of the defendants, together with the inventory and appraise-

6 WHAKTON 17



258 SUPREME COURT [Dec. Term,

[Tyson . Dorr.]

wzq-i ment; which were filed on the 16th of March 1882 ; and
* -1 from which *it appeared, that the goods and effects were
valued at $5352.06

The outstanding debts, viz. :

Good debts, - $2543.96

Doubtful, $2995.36

Valued at 30 per cent., 898.50 $3442.46



Total, - $8794.52

The defendants also offered in evidence the deposition of M. Drury,
the assignee, taken under a commission to New York. The follow-
ing passages were objected to and rejected by the learned judge; to
which exception was taken :

" Sixth Interrogatory. Has anything been paid by you to the
plaintiffs, under the assignment from the defendants ? If no, why
was it not done? State all the circumstances."

Answer. " Nothing has been paid. An offer to pay money was
made by me, but the plaintiffs refused to receive it. The circum-
stances were as follows : I went to the counting-house of Messrs.
Dorr on the 4th of October in the year 1837, and offered to one of
the partners, not the gentleman now present, who represents him-
self to be S. F. Dorr, the amount of twenty-six per cent, on the
amount of the debt due them ; he said that he had no authority to
receive it ; that he would converse with the other partner, and wished
me to call again in two hours time, when one or both of them would
be in. I called accordingly, and offered Mr. Samuel F. Dorr, then



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 29 of 75)