8 Mass. 402 (Mass. 1812), Newburyport Marine Insurance Company v. Oliver

Citation:8 Mass. 402
Opinion Judge:Sedgwick, J.
Party Name:The Newburyport Marine Insurance Company v. Francis J. Oliver and Another
Attorney:Dexter and Jackson for the plaintiffs, and Amory and Otis for the defendants.
Court:Supreme Judicial Court of Massachusetts

Page 402

8 Mass. 402 (Mass. 1812)

The Newburyport Marine Insurance Company


Francis J. Oliver and Another

Supreme Court of Massachusetts, Suffolk

March, 1812

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This was an action of assumpsit for money had and received.

At the trial, which was had on a review at the term of this Court in November, 1809, before Parker, J., the plaintiffs rested their case on the following facts proved or admitted, viz.: In March, 1800, they insured for the defendants 5000 dollars on the freight of the ship Columbia from Teneriffe to Jamaica. The said ship was laden at Teneriffe with a cargo of wine belonging to Mess. Pollard & Co. of London, which was to be transported to Jamaica at 3l. sterling per pipe. On her passage the ship was captured by a French privateer, and after being in possession of the captors more than 96 hours, was recaptured by a British armed vessel, and carried into Antigua, having in her way been damaged by getting on rocks. The ship and cargo were libelled in the Vice Admiralty Court at Antigua, for salvage, and ordered to be sold, and one half the gross proceeds to be paid to the captors, and the other half, after deducting all costs, to be paid to the master, for the use of the owners and all concerned.

The master testified that he could find no agent of Mess. Pollard & Co. in Antigua, but understanding that a Mr. Colquhan was their friend and correspondent, he employed said Colquhan to assist him, and placed the proceeds of the cargo in his hands, to be remitted to the owners in London, except the sum of 521l. 19s. 5d. sterling, being the balance of account in his hands, which he retained and paid over in a bill of exchange to Mess. Oliver and Procter, the present defendants, as the freight pro rata itineris, in case they should be entitled to such; but otherwise to be remitted to Mess. Pollard & Co.; the master being ignorant, as he stated, whether freight was due or not, or whether that sum was due, if any.

The defendants, having abandoned to the underwriters all their interest in the freight, claimed of them payment of a total loss, which was refused by them. The question was submitted to the dicision of J. Russel and T. Dennie, viz., "whether all, or what proportion of said freight, was due from the plaintiffs, or from Mess. Pollard & Co., the freighters in London;" and the arbitrators having determined that the company were liable for a total loss of the freight, the sum of 5000 dollars was paid to the defendants on their receipt; and an assignment of the right or interest in the freight was made to the plaintiffs on the back of the policy, with a power of attorney to recover the same.

The plaintiffs alleged, in support of their action, that although at the time of the demand on them for a total loss, and of their agreement to submit the question to arbitrators, the defendants had in their hands the above-mentioned sum of 521l. 19s. 5d. of the proceeds of the cargo on account of freight, they gave no information of that fact to them, nor afterwards, at the hearing of the question, did they make it known to the arbitrators, nor was it ever made known to them by the defendants; but was accidentally discovered by the plaintiffs in the adjustment of another concern between the same parties. And they contended that freight being due for that part of the cargo, which came to the hands of the correspondent of the freighters at Antigua, pro rata; although the defendants had, after the decision of the arbitrators, remitted the sum before retained on account of freight to Mess. Pollard & Co., yet the plaintiffs were entitled to recover said sum; because they ought to have been informed that such money was on hand for that purpose; and they further contended, that from the terms of the submission and the subsequent proceedings, it was apparent this circumstance was concealed from the plaintiffs by the defendants.

The defendants contended that under the circumstances of this voyage, no freight was due from Mess. Pollard & Co., and...

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