Agency v. Sutherlin

• Decision Date: 31 July 1872
• Citation: 46 Ga. 653
• Parties: UNDERWRITERS' AGENCY, plaintiff in error. v. WILLIAM T. SUTHERLIN, defendant in error*
• Court: Georgia Supreme Court

46 Ga. 653

UNDERWRITERS' AGENCY, plaintiff in error. v. WILLIAM T. SUTHERLIN, defendant in error^*

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

Attachment. Insurance. Open policy. Before Richard F. Lyon, Esq., Attorney at Law, presiding by consent. Dougherty Superior Court. June Term, 1871.

William T. Sutherlin sued out an attachment against the Underwriters\' Agency, composed of the Germania, Hanover, Niagara and Republic Fire Insurance Companies, of New York, for the sum of $74 2 43, besides interest and expenses. At the appearance term a declaration in attachment was filed, containing, substantially, the following allegations; that petitioner brings his suit upon the following written contract, to-wit:

"No 29. Underwriters' Agency. $4,000.

"Germania, Hanover, Niagara and Republic Fire Insurance Companies, of the city of New York.

"Albany, Ga., January 20th, 1866.

"This is to certify that William T. Sutherlin is insured for account of whom it may concern, under and subject to the condition of policy number seven hundred and eighty, issued by the above named companies, in the sum of $4,000, each company bearing one-fourth of the risk taken upon (20) twenty bales of cotton, marked W. T. S., on board cargo of the box number eighteen—Saucer, master—at and from Albany, Georgia, to Apalachicola, at the rate of four per cent., which premium of $160 is hereby acknowledged to have been received. Loss, if any, payable to W. T. Southerlin, or order hereon at New York, upon the return of this certificate.

(Signed,) "Y. G. Rust, Agent."

"Countersigned, A. S. Stoddard,

General Agent, New York."

Indorsed on the face as follows:

"The property is insured under this policy from Apalachicola to new York, by good steamers or sailing vessels, and includes twenty days fire risk at Apalachicola from the discharge *of the box." That on January 20th, 1866, petitioner shipped from Albany, Georgia, for the city of New York, via Apalachicola, twenty bales of cotton, marked W. T. S., on board of cotten box, number eighteen, whereof one Saucer was master; that at Apalachicola said cotton was, in good order, shipped on the bark J. H. McLaren for the city of New York, the point of final destination; that at the date of shipment said cotton was of the value of $4,000; that said bark arrived safely at the city of New York, on or about April 10th, 1866; that a survey was made by the port wardens of the city of New York, said cotton pronounced damaged by water, and a sale ordered and made by due course of trade, and under existing laws then in force, netting from said sale the sum of $2,527 16, such sale occurring on April 20th, 1866; that defendant is therefore indebted to petitioner the principal sum of $1,475 85, with interest thereon from said date of sale until paid; that petitioner has demanded, and defendant has refused payment of said claim."

The record fails to disclose the plea filed by defendant.

When the case was called for trial, it was agreed between the parties that Richard F. Lyon, Esq., an attorney at law, should preside, Judge Strozier having been of counsel for plaintiff.

Plaintiff introduced the certificate in his declaration set forth; also his own deposition, and that of W. H. Price, who examined the cotton upon its arrival in New York, by which the damage was proven and also efforts to obtain a settlement from defendant. Plaintiff closed.

Much evidence was introduced by the defendant, which it is unnecessary here to set forth, as a consideration of the same is not involved in the decision of the Court.

The jury returned a verdict for plaintiff for the sum of $728 75, with interest from date of the sale of cotton.

The defendant moved for a new trial upon the following, among other grounds, to-wit:

Because said verdict is without any evidence to support it, and manifestly against the weight of evidence.

*The motion for a new trial was...