Mackay v. Rhinelander

If a vessel be represented as out “ about nine weeks,” when in fact she has been out ten weeks and four days, it is not a material misrepresentation, provided the latter period be within the usual time of the voyage; and whether it be so, or not, is a question of fact for the jury to decide. Ah agent of the insured who applied to the broker to have the policy effected, like all agents, is a competent witness, ex necessitate.

This was an action on a-policy of insurance, made upon the brig called the Leonard, on a voyage from Boston to Surinam. The cause was tried at the last November circuit, in the city of New York, before Mr. Justice Radcliff. The interest of the plaintiff, and the loss of the vessel, by capture and condemnation, were proved, and that the usual preliminary proofs had been given.(a) The insurance was effected pursuant to a written order for that purpose, dated the 9th August, 1798, and which stated the vessel as having been out “ about nine weeks.” A witness stated that it was represented, at the time the policy was underwritten, that the nine weeks were to be computed from the 3d August, 1798, and that this was so admitted by the plaintiff, in a case containing the facts agreed to be submitted to referees. ; The Leonard sailed from Boston on the 21st May, 1798, for Surinam, and was captured on the 21st June, and sent into Cayenne, and there condemned as prize. Several merchants and ship-masters were sworn as witnesses, some of whom stated their opinion to be, that the difference between nine weeks, and ten weeks and four days, on such a voyage was material, and would enhance the risk; and that a vessel out ten weeks was out of time, the usual passage from Boston to Surinam being from twenty-five to forty days, and home, from twenty-five to thirty-five days; others stated that the passage from Boston to Surinam was from thirty-five to sixty and ninety days; one witness testified, that he had known passages of four and five months. *The agent of the plaintiff who procured the in- [*409] surance was offered as a witness, to prove the order given to the broker, and what representations were .made. He was objected to as interested in showing that he had followed his instructions; but this objection was overruled by the judge. The witness stated that when he first applied to the broker, he gave him a letter of the plaintiff, dated the 3d August, 1798, in which he stated the vessel to be out about nine weeks; that the written order was afterwards given to the broker, and the word “ about” was interlined in it, after advice of the loss was received, that the representation to the defendants was, that the vessel had been out about nine weeks. The judge charged the jury, that the word about, as used in the representation, was of an indefinite meaning, and not capable of a precise determination'; but ought to be construed, according to the subject to. which it applied, the voyage insured ; that to have reference to the time within which the vessel might probably be heard of, in order to determine whether she was so far out óf time as to increase; the risk, would be too nice a calculation ; that he thought the weight of evidence in favor of the fact, that the vessel had not, at the time the policy was underwritten, been out beyond the usual term of such a, voyage; and that, therefore, the difference between nine weeks, and ten weeks and four days, was 'not so material to the risk, that it ought to vacate the policy. The jury found a verdict for the plaintiff. . A motion was now made to set aside the verdict, and for a new trial. 1. Because of the misdirection of the judge. 2: Because the agent of the plaintiff was an inadmissible Witness. 3. Because the verdict was against evidence.