Hood v. The Manhattan Fire Ins. Co.

If not parts of the contemplated barque, what were they? Were they "lumber and building materials?" It seems the plaintiffs' firm had a policy effected with another company on "lumber and building materials," in the shipyard, in which they were building a barque.

It would seem that one or the other of the policies should cover the loss, unless, upon sound principles of construction, it may be said, that the materials thus insured, may be so changed in form and character by the labor of the artisan, with a view to make them parts of a barque building and also insured, as to be adapted, and in a position to be applied to the end contemplated, and thus made valueless for any other purpose, and yet be neither building materials, nor parts of a barque building; and while in this particular condition be covered by neither policy. The phrase, "lumber and building materials," conveys the idea of subjects, which may be fitted as well into one structure of a particular class as into any other, and that they are in a condition to be wrought into a form, to be as well parts of one vessel, as of any other vessel of the class.

They indicate the idea of materials no further wrought than to subserve and be adapted to building purposes generally. They do not convey the idea of materials formed and cut, designed and adapted to be parts of a specific building in contemplation, and which, as fast as labor can do it, are being incorporated into the intended building, and which, by means of such adaptation, are valueless for any other purpose.

It seems quite clear that they do not answer the description of "lumber and building materials," as these terms are commonly understood. If they do not, the loss could not have been recovered under the policy on property of that character. Suppose a wheelwright should effect a policy on the lumber and materials for building carriages, &c., in certain designated premises, and subsequently should effect another policy with another company, on a carriage building for A. B. in the same premises.

After some of the materials have had so much labor expended upon them, that the hubs are morticed to receive the spokes, and the spokes are completed and in their proper position to be, and for the purpose of being, driven into them; and the fellies are completed to be fitted to the spokes, and the

Hood v. The Manhattan Fire Ins. Co.

parts of the body so fashioned as to be in a condition to be put together, all are consumed by fire? Will either policy, on fair principles of construction, attach to them, and if so, which? Are they, in this state, lumber and materials for building carriages, &c., or are they parts of the contemplated carriage for which they are fitted and were designed? or are they neither? If either, it would seem to be quite clear that they are parts of the "carriage building."

In construing this policy, the fact that the part on the stocks was not burned, is of no consequence. If that had been burned also, the question whether the policy covered any other parts of the contemplated barque, must necessarily have been determined by the same principles and considerations which must control this case on the facts before us.

If all the parts had been burned, including the keel, still, on the construction claimed by the defendant's counsel, neither the stem-frame, nor the stern-frame, nor any parts of the frame which might have been lying upon the keel, but not fastened to it, would have been covered by the policy.

Such a construction is much narrower than can be reasonably supposed to have been within the contemplation of the parties to a contract, the object of which would seem to have been to secure an indemnity to the plaintiff against loss from injury by fire to parts of a vessel which he was laboring to construct, while so constructing it, or for a period named.

Such a construction would limit the operation of the policy to such parts of the contemplated structure as might be on the stocks, and actually united to each other, while other united but detached parts, lying alongside of the keel, equally approximated to actual completion, and of far greater aggregate value, would not be covered by it.

We cannot think that such was the intention of the parties to the contract, nor that its terms coerce us to adopt the construction claimed by the defendants.

We concede that Mason & Leap v. The Franklin Ins. Co., 12 Gill. & John. R. 469, is, in its facts, substantially like this. That was decided as a case of first impression. That is the only case, apparently, in point, to furnish any aids in the disposition of this case not had by the court in the decision of that.

In

Hood v. The Manhattan Fire Ins. Co.

that case, the court gave the conclusions which they formed, without stating the considerations by which their judgments were controlled.

Of that case, it may be said, that the articles burned, for aught that appears, might as well have been used, and were as well adapted for the spars and rigging of some other vessel as that for which they were furnished. If substantially as valuable, and well adapted for such a use as that for which they had been bought, the fact is certainly one of some importance.

In that case the ship had been launched before the fire occurred. As a matter of substance, she had been built, but was not rigged, nor in every other respect fully finished.

In this case, the work of building had not so far progressed, as to have placed the different parts in such position as to have given them even the form of a skeleton of the "barque building." Unless the words, "on the stocks," are to be regarded as of themselves restrictive of the meaning, which would otherwise be given to the words, a "barque building," we cannot think effect will be given to the intention of the parties, otherwise than by holding that all the materials which had been wrought with the intent that they should be, and which were fitted to be parts of the contemplated barque, and which, by reason of such adaptation, were valueless for other purposes, which were lying in the ship-yard in the appropriate place to be, and with the intent that they should be incorporated into the structure, were parts of the "barque building," within the meaning of the words as used in the policy in question.

We think the words, on the stocks," were not used to restrict the natural meaning of the words, "barque building,' but merely to indicate the parts on the stocks as specific parts of the barque to be built, and the locality which the keel was to occupy until the structure was completed, and to aid in determining, in case of a loss by fire, whether parts of a vessel or bark, fitted and ready to be incorporated into the body of a vessel, were actually parts of the intended barque or not.

Although the case is not free from doubt, yet we cannot resist the conviction, that the frames that were burned were as much parts of the contemplated barque as the keel on the stocks, within the meaning and intent of the parties, as evi

Ogden v. The General Mutual Ins. Co.

denced by the fair construction of their contract. ment appealed from must therefore be affirmed.

The judg

JOSEPH OGDEN V. THE GENERAL MUTUAL INSURANCE Co.

The defendants insured the plaintiff for the sum of $10,000 upon freight. The insurance was against total loss only, and the policy contained an express stipulation, that the defendants "should not be liable for any partial loss whatever."

Held, that the insurance was upon the whole freight as one integral subject, and not upon the separate items of freight, upon distinct and separate parts of the cargo, shipped by different shippers.

Held, therefore, that if any freight had been earned, or could have been earned upon any part of the cargo, the plaintiff was not entitled to recover. The ship to which the insurance related, returned in distress to New York, her port of departure. Before her arrival on this return, there had been a necessary jettison of a part of her cargo; another part was so damaged that it could not be reshipped; but the residue was wholly undamaged. The ship was repaired within a reasonable time, at a cost of much less than half her value, and then proceeded with a full cargo to her original port of destination; but, in the interval, the master had sent forward the undamaged goods by another ship, at an increased freight, exceeding largely that which he was entitled to receive upon them.

Held, that there was no total loss of freight, within the meaning of the policy, since the master might have entitled his owner to freight upon the undamaged goods, by retaining them, and carrying them forward in his own vessel. The loss of freight, therefore, upon these goods, was not owing to the perils insured against, but to an unnecessary and voluntary act of the master. Held, also, that as the undamaged goods, although sent forward in another ship, arrived in safety at their port of destination, freight was in fact earned upon them; and that, with the increased cost of earning it, as it was not in any legal sense a consequence of any peril insured against, the defendants as insurIt formed no part of a loss for which they could be

ers had no concern.

liable.

Upon these grounds, verdict for the plaintiff set aside, and new trial granted— costs to abide the event.

(Before OAKLEY, Ch. J., CAMPBELL and BOSWORTH, J.J.)

April 14, 15, 18, 19. May 28, 1853.*

The defendants, in the first instance, had demurred to the declaration in this case, upon the ground that it appeared upon its face that there had been no

Ogden v. The General Mutual Ins. Co.

APPEAL from a judgment at special term, denying a motion on behalf of the defendants for a new trial, upon exceptions taken upon the trial. The cause was tried before the Chief Justice and a jury, in February, 1850.

The action was upon a policy of insurance, executed by the defendants. By the policy, the defendants insured the plaintiff to the amount of $10,000, "against total loss only," upon the freight of goods, laden or to be laden on the ship St. Patrick, which was valued at $48,000. A technical total loss of the vessel was to constitute a total loss of freight. It was expressly stipulated in the policy that it was without prejudice "to any other insurance upon actual freight," whether effected before or after its date; that the defendants "shall not be liable for any partial loss whatever, nor for general average or expense, nor entitled to any salvage in case of loss." The policy also provided and declared "that the said freights, hereby insured, are valued at $10,000, carried or not carried, earned or not earned; policy proof of interest."

The policy, when executed, was to continue in force from the 18th of December, 1844, to the 18th of December, 1845. On the 30th of December, 1845, it was renewed and continued in force until the 30th of December, 1846, and contained a provision, that, if then absent, the policy might be renewed three months, at a pro ratâ premium.

The St. Patrick, at the time the policy was effected, was owned by certain persons named in the declaration, and they continued to own her until the time of the alleged loss. The policy and renewal were effected for their account and benefit, and to cover and protect their interests on the freights of the said ship on her several voyages, she being employed as a general ship, carrying cargo on freight between New York and Liverpool, or other transatlantic ports.

She sailed on the voyage in question from the port of New

total loss of the freight. The Superior Court gave judgment for the defendants upon the demurrer. The Supreme Court affirmed the judgment, but it was subsequently reversed by the Court of Appeals. Why the case has not been published in the Reports of that Court I am unable to say.-[REPORTER.]