Amsinck v. American Insurance Co.

• Decision Date: 10 July 1880
• Citation: 129 Mass. 185
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Gustave Amsinck & another v. American Insurance Company. Same v. Boylston Mutual Insurance Company. Same v. New England Mutual Insurance Company

129 Mass. 185

Gustave Amsinck & another v. American Insurance Company.

Same v. Boylston Mutual Insurance Company.

Same v. New England Mutual Insurance Company

Supreme Court of Massachusetts

July 10, 1880

Argued March 18, 1879

Suffolk.Three actions of contract upon policies of marine insurance.At the trial in this court, before Morton, J., the jury returned a verdict for the plaintiffs; the case was reported for the consideration of the full court, and appears in the opinion.

Verdicts set aside.

A. S Wheeler & E. W. Hutchins, for the defendants.

L. S Dabney & R. H. Dana, Jr., for the plaintiffs.

EndicottJ. Ames & Lord, JJ., absent.

OPINION

Endicott

Upon the facts reported, the court is of opinion that Machado had an insurable interest in the vessel at the time the policies attached, even if we assume that they took effect on July 5 1876, the day of their date.On that day, the plaintiffs, as agents for Machado, made an oral agreement in New York with the owners of the vessel for her purchase for the sum of $ 11,000, payable on delivery of a proper bill of sale; and having previously ascertained that the defendants would insure her, they gave directions to have the insurance closed.The policies were written on that day; the precise time of their delivery does not appear.The oral contract to purchase was reduced to writing and signed by the plaintiffs and the owners on July 7; and a portion of the purchase money was paid on that day.Possession was taken by Machado, the balance due was paid, and a bill of sale was duly executed to a third person in trust for Machado, who was a foreigner.

It is conceded by the defendants that Machado was the only person whose interest was insured, as appears by the declarations and the policies.But they contend that he had no insurable interest on July 5, for at that time he had only an oral contract for the purchase of the vessel; and that such a contract, being within the statute of frauds, and incapable of being enforced, gives no insurable interest.

But the oral contract to purchase was not void or illegal by reason of the statute of frauds.Indeed, the statute presupposes an existing lawful contract; it affects the remedy only as between the parties, and not the validity of the contract itself; and where the contract has actually been performed, even as between the parties themselves, it stands unaffected by the statute.It is therefore to be "treated as a valid subsisting contract when it comes in question between other parties for purposes other than a recovery upon it."Townsend v. Hargraves, 118 Mass. 325, 336.Cahill v. Bigelow, 18 Pick. 369.Beal v. Brown, 13 Allen 114.Norton v. Simonds, 124 Mass. 19.See alsoStone v. Dennison, 13 Pick. 1.Machado had under his oral agreement an interest in the vessel, and would have suffered a loss by her injury or destruction.Eastern Railroad v. Relief Ins. Co.98 Mass. 420.This interest he could have assigned for a valuable consideration, and, if he had assigned it, all the rights afterwards perfected in him would have enured to the benefit of his assignee.Norton v. Simonds, ubisupra.The case of Stockdale v. Dunlop, 6 M. & W. 224, relied upon by the defendants, does not sustain their position, for reasons which are stated in Townsend v. Hargraves, ubisupra.

The several policies of the defendants insure the ship on a voyage "at and from New York, via Bangor, to St. Michael, Western Islands."She left New York on September 3, and arrived at Bangor on September 13, where she took in additional cargo; from that port she sailed on October 27, and was lost on her passage to St. Michael.The defendants offered evidence of unreasonable delay at Bangor, where the ship remained for forty-three days, contending that, under the general denial of the answer, they could show that she did not sail on the voyage insured; in other words, that there was a deviation.

Any departure from the route named in the policy to a port or place not named, and any delay in prosecuting the voyage, without necessity or just cause, or any delay at a port named in the policy, for the prosecution of business not connected with the business of the voyage, or any unreasonable delay at such port in prosecuting the business of the voyage, is a deviation.Whether the risk is increased thereby is immaterial.The assured has no right to substitute a different voyage for that which is insured, and can only recover for a loss sustained while the ship is prosecuting the voyage named in the policy; and if she has deviated prior to the loss, she is not then prosecuting the voyage for which she was insured.Whenever, therefore, she departs from the route, or delays in the prosecution of it, it is incumbent on the assured to show that the departure was caused by necessity, or that the delay at a port named in the policy was reasonable under the circumstances in order to accomplish the objects of the voyage.Burgess v. Equitable Ins. Co.126 Mass. 70, and cases cited.African Merchants v. British Ins. Co. L. R.8 Ex. 154.

The declaration in each of these cases alleges that the defendant insured the ship, "on a voyage at and from New York, via Bangor, to St. Michael, Western Islands; and while proceeding on said voyage said ship was wrecked, and totally lost by the perils and dangers of the seas."These are necessary allegations, which the plaintiff is bound to establish...