Burnham v. Boston Marine Ins. Co.
| Decision Date | 20 June 1885 |
| Parties | BURNHAM and others v. BOSTON MARINE INS. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
This was an action on a policy of insurance made upon “advances on board the schooner Madame Roland,” a fishing vessel, to the amount of $500. The policy sued upon was issued by the agent of the defendant at Gloucester. Said agent was also president of the Mutual Fishing Insurance Company, in which a previous policy had been taken out upon the schooner and her outfit, and by this policy no further insurance was to be effected upon the vessel or her outfit. August 8, 1882, the plaintiffs received a telegram from the captain of the schooner saying that she had run ashore, and was a total loss. This telegram was at once handed to Steele, the agent, by the plaintiffs, who at the same time told him that they considered the vessel as abandoned and on his hands. At the trial in the superior court, the presiding judge ruled that the plaintiffs were entitled to recover on the policy sued upon, for the loss of the money advanced to the seamen as wages, and to the captain for the purchase of bait, but not for the loss of the outfit, comprising hooks, lines, furniture, etc. To this ruling both plaintiffs and defendant excepted.G.B. Ives and B.N. Johnson, for plaintiffs.
John C. Dodge & Sons, for defendant.
The statement made by Steele, before the policy was issued, that he could write $500 more in the Boston Marine Insurance Company, and could call it on “advances” and not on outfit, and that it would be all right, could not be received to change the contract actually made. A written contract must be construed according to its terms in their ordinary signification, unless these terms, by usage in the business or between the parties, have a different meaning; and oral evidence that before the contract was executed the parties orally agreed that some of its terms should mean something different from their ordinary meaning, or their meaning as established by usage, is evidence to vary a written contract. Usage is a fact; and if it is a particular usage it must be known to the parties, and if a general usage it must be so well established and known that it must be considered that parties reasonably well acquainted with the trade or business either know it or ought to have known it.
The testimony of Gore is oral testimony that what is usually described in policies of insurance as “outfits” had been actually insured as “advances” in policies generally, or in policies on fishing vessels in Gloucester. Indeed, his testimony is that “advances” in policies of insurance commonly meant advances to the crew, and advances on account of freight. The only portion of his testimony favorable to the claim of the plaintiffs is an expression of an opinion of what might properly be done, and not testimony of anything that had actually been done, or of any existing usage.
The advances claimed are $60.14 which had been advanced to different members of the crew to be repaid by them out of their share of the catch, and $100 which had been advanced to the captain to buy bait. Neither the captain nor the crew received wages, “but took shares of the catch instead.” It is not contended that the advances to the crew were not covered by the policy, if the evidence showed a total loss. For the advances to the crew the plaintiffs had a lien upon their shares of the catch. The plaintiffs also had a lien upon the catch for any money expended for bait. If the plaintiffs delivered money to the captain to be expended for bait, and he did not so expend it, it...
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