PRATT. SUTHERLAND Way of gaming or wagering, or without benefit of salvage." This is not a case where there is no proof of interest but the policy, nor is it a case of gaming or wagering. The plaintiff has the interest of a pledgee, and to protect himself against loss as such, effects the insurance there is nothing illegal in that, either at common law or by the statute. He had the greatest possible interest in the arrival of the goods in the condition in which he supposed them to be when he made the advance upon them, so as to secure him from loss. Mead v. Davison (1) goes further than the present case. There the policy was in fact executed after the loss of the ship had become known to both parties, being made in pursuance of a contract entered into before the loss, and yet it was held valid: being assimilated to the case of a conveyance of land, where the house had been burnt down since the contract was made: Paine v. Meller (2). [ *301 ] (PARKE, B.: There the plaintiff was interested at the time of the loss: here he is not.) But the defendants have expressly contracted to indemnify him against that loss: and how can it be said that he effected the policy. "interest or no interest," when he had the strongest possible interest that the goods should reach him undamaged. (PARKE, B.: Your argument, I suppose, would be the same in case of a total loss.) There might be a difficulty there, because it might be said a person could not buy a thing which was lost: but here it is expressly stated to be a partial loss, and the goods exist in solido. (PARKE, B.: It is not a wagering policy, because the plaintiff meant to insure against perils of the sea an interest which he would have had if the ship had arrived safe.) To render the contract illegal, it must be in the nature of a wager, and in no respect in the nature of an indemnity for a bona fide interest. (PARKE, B.: Stockdale v. Dunlop (3) may be cited for the defendants: there, however, the plaintiff had no legal interest in the goods, because there was only a verbal contract.) (1) 42 R. R. 401 (3 Ad. & El. 303; (2) 5 R. R. 327 (6 Ves. 349). This is a loss expressly protected by the terms of the contract, and SUTHERLAND the plaintiff has a sufficient interest. The second and third pleas are bad in form, as amounting to non assumpsit, which puts in issue the consideration given by the plaintiff for the defendants' promise, as well as the promise itself: Bennion v. Davison (1). Greenwood, contrà : The object of this declaration obviously is, to defeat the answer which the plaintiff knows the defendants would be able to give to any claim by Boggs, Taylor & Co. The mode in which the interest is averred on this record is a mere evasion of the ordinary allegation of an interest during the risk and down to the time of the loss. The plaintiff could not apply the ordinary form here, because the loss occurred before he had any interest in the goods: he therefore uses an ambiguous expression, which may mean either that he was interested during the whole of the voyage, or that he had an interest on some particular day in the course of the voyage. In the latter sense the allegation is true, because on a day after the loss he was interested in the goods, in the state in which they then were, but he has therefore suffered no loss. The argument on the part of the plaintiff must be the same as in the case of a total loss. (PARKE, B.: But there is an averment that the goods were wetted and damaged, and so became of no use or value to the plaintiff; that is, that he received damage by means of the loss.) Anybody might say that, whosesoever the goods were that were injured. If a party chooses to make such a contract by way of pledge, he may provide against loss by getting the owners to effect an insurance upon the goods, lost or not lost, and they may recover upon the policy as trustees for the pledgee: Powles v. Innes (2), Sparkes v. Marshall (3). Independently of the provisions of the statute against wagering policies, the language of the Courts has always been, that the plaintiff must be interested at the time of the loss. There is no such allegation here, nor any direct averment that he sustained any loss. (PARKE, B.: Surely the averment I have referred to means, that by the perils of the seas a loss has been caused to the plaintiff, (1) 3 M. & W. 179. (2) Ante, p. 496. (3) 42 R. R. 725 (2 Bing. N. C. 761; 3 Scott, 172). v. PRATT, [302] [ *303] SUTHERLAND which would not be true if he bought the goods in their damaged state.) PRATT. [ *304 ] That is a mere superfluous statement, meaning in truth no more than the words at the end of the declaration, "to the damage of the plaintiff," &c. If he proves the contract, the interest, and the damage, the right of action is complete; the rest is mere matter of evidence as to the amount of the damages. The allegation referred to could not have been traversed, and therefore nothing is admitted against the defendants by not putting it in issue. Could the plaintiff have recovered in case of a total loss? He has not lost anything. It is like the case of the sale in London of a particular horse, described as being "then on his voyage from Edinburgh," but which is in fact dead at the time of the sale. Surely the purchaser could not be bound in such a case to pay the price, nor, if he had insured the horse, could have recovered on the policy: for there is an implied engagement in every contract for the sale of a specific chattel, that the thing is in existence: Barr v. Gibson (1); and a contract of insurance is only a contract of indemnity. Rhind v. Wilkinson (2) was the first case in which it was said to be unnecessary to aver an interest at the time of effecting the policy: but it *clearly must exist during the risk. But when goods are lost or destroyed, whether in whole or in part, no risk exists. It can make no difference in principle whether the loss is total or partial. If I sell this year's crop of hay from a particular field, and it is then discovered that the stack was burnt down before the contract, the purchaser is not bound to pay; but if it has been damaged by weather or otherwise, still retaining, in common acceptation, the character of hay, then he must take it as he bought it, and pay the stipulated price. Can it make any difference whether the hay was in a stack or on board ship, or whether it was damaged by rain or sea water? If the purchase is after the injury, the purchaser takes the goods as he finds them; and if he insures them, however improvident the bargain he has made, inasmuch as his goods were not injured, the insurers can no more be liable to pay for the partial damage than they would in case of a total loss. (PARKE, B.: You say that where goods are injured to a tenth part of their value it is the same thing as if that tenth did not exist.) Yes: as to that part there is an entire loss before the plaintiff has ť. PRATT. any interest in it. In case of the insurance of a house, it has SUTHERLAND always been necessary to show that the plaintiff had a property in it at the time of the fire: Lynch v. Dalzell (1). [He also cited The Sadlers' Company v. Badcock (2) and Grant v. Parkinson (3).] Secondly, the second plea is not bad as amounting to non assumpsit. · [305] In this case the plaintiff declares in the usual form, that he caused to be made a policy of assurance, purporting thereby that Boggs, Taylor & Co., as well in their own name, as for all persons to whom the same did, might, or should appertain, made assurance, and caused themselves and them to be assured with the General Maritime Assurance Company, lost or not lost, from Bombay to London, upon any kind of goods and merchandise, &c., beginning the adventure upon them from the loading thereof on board the ship until arrival, and the landing of the goods. The insurance was declared to be on 360 bales of cotton. The declaration then states, as usual, the admission in the policy that the premiums were paid, and in the usual manner, that, in consideration of the premises, and that the plaintiff, at the request of the defendants, being three of the directors of the Company, paid them 401. as a premium for the assurance of 2,000l. on the goods, and then promised to fulfil all things in the policy on his part, the defendants promised the plaintiff that the Company would be assurers to the plaintiff of 2,000l. upon the goods, and would perform all on their part as assurers to be done, &c. The declaration then avers, that the goods were loaded at Bombay, to be carried on the voyage, and then (which is not in the usual form) that the plaintiff was, during the voyage, interested in the goods in the policy mentioned, and so loaded, to a large amount, to wit, the amount insured, and that the said assurance was made for his use and on his account. The ship is then stated to have been damaged by perils of the seas, and the goods thereby damaged, and rendered of no use to the plaintiff. The declaration then states, that the stock of the Company was (3) 6 R. R. 635, n. (cited 3 Bos. & P. 85). (1) 3 Br. P. C. 497. (2) 2 Atk. 554. SUTHERLAND Sufficient to make good the plaintiff's claim and demand which had so accrued, but that the defendants had not paid it, to the plaintiff's damage of 5001. PRATT. [311] [ *312] To this declaration there were three pleas, which have been demurred to the second, the third, and the eighth. The second plea, after admitting that Boggs, Taylor & Co. made the policy, denied that it was made by or on behalf of the plaintiff, and concluded to the country. To this there was a special demurrer, alleging for cause, that the plea amounted to non assumpsit. The third plea averred, that the plaintiff did not pay the premium, nor did any one for him, nor promise the defendant to perform the things in the policy, on the part of the assured to be performed: concluding to the country. To this plea also there was a special demurrer, for the same cause. The eighth plea was, that although the plaintiff acquired an interest in the goods after the commencement of the voyage, to the amount insured, yet, that the goods were damaged and diminished in use and value, as in the declaration mentioned, before the plaintiff acquired or had any interest therein, and not after. To this plea there was a general demurrer, which raises the only question on the merits of the case, the others being mere matter of form. We are of opinion that the eighth plea contains no answer to the declaration. The plea admits expressly that the plaintiff had, during the voyage, an interest in the goods on board, to the amount insured thereon, and it admits impliedly (for it does not deny that allegation), that the insurance was made for the use and benefit and on the account of the plaintiff, that is, as a contract of indemnity to the plaintiff, against any loss in respect of that interest, by any of the perils insured against. This being admitted, the simple question is, whether it is any answer to an action on a policy on goods, (lost or not lost), that the interest in them was not acquired until after the loss. We are of opinion that it is not. Such a policy is clearly a contract of indemnity against all past, as well as all future losses, sustained by the assured, in respect to the interest insured. It operates just in the same way as if the plaintiff having purchased goods at sea, the defendant, for a premium, had agreed, that if the goods had at the time of the purchase sustained any damage by perils of the sea, he would make it good. The plea, therefore, is bad in substance. |