Block v. . the Columbian Insurance Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 395 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 396 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 397 The motion for a nonsuit was based particularly upon the ground, that it was not shown that the gold in question was consigned to H. Cohen Co., by regular invoice and bill of lading; and this presents the only question raised by the defendant for the consideration of this court. There being no dispute about the facts of the case, this question arises and depends upon the proper construction of the policy. The construction of all written instruments is to be made in view of the extrinsic facts and circumstances to which they relate, and which were within the purview of the parties at the time of their execution. From the face of the policy and the attending facts and circumstances to which it relates, it is quite apparent that it was designed to insure the plaintiffs against the loss of such treasure, in the shape of specie and gold bars and other goods, as they might from time to time ship by steam vessels from San Francisco to Cohen Co., New York. The gold bars sent and lost, and in question in this action, were within the general scope and intent of the contract. They were sent by the plaintiffs from San Francisco by a steam vessel, and the same were, on their arrival in New York, to be delivered to the plaintiffs' brokers, H. Cohen Co. The substance and intent of the contract thus far covered the precise loss which occasions this action, and such loss is of the very kind and nature to come in the precise mode contemplated by the parties in taking and giving the policy. The simple question, then, is whether the clause in the policy "consigned to H. Cohen Co.,by regular invoice and B. lading," rendered the policy inapplicable to any gold not directed in the bill of lading to be delivered to H. Cohen Co. Upon the face of the bill of lading, the gold in question clearly was not so consigned. The object of this provision in the policy was, undoubtedly, *Page 399 to cover shipments exclusively to be made by the plaintiffs to Cohen Co. By the consignment to them a benefit was secured to Cohen Co., as members of the defendant's company; for it appears that the premium of $750, specified in the policy, was secured by their premium notes. And also to exclude all money shipped in any other mode than by such consignment by bill of lading to Cohen Co., so as that they would receive the money on its arrival in New York. Another object was to cut off all chance for fraud and false claims, as the policy was an open one, and all mistake in respect to the identity or certainty of the amount of treasure shipped. Now I do not see why the end and object, sought to be secured by this provision in the policy, is not completely secured by the shipment of this gold in the manner adopted by the plaintiffs. It was embraced in a bill of lading, consigned nominally to Newstadter Brothers, in New York, but invoiced as the property of the plaintiffs, with directions to Newstadter Brothers, in New York, to deliver the same immediately to Cohen Co., which was an effectual consignment of said gold to Cohen Co., and entitled them to receive the money on its arrival, and identified the same without any chance for fraud or mistake. The amount of the gold was covered by and included in the bill of lading, and the same was embraced in the two items of gold in bars specified on the face of the bill of lading, as consigned to Newstadter Brothers, New York. The consignment by plaintiffs to Cohen Co., with the invoice accompanying said gold bars, and included in the consignment by the bill of lading to Newstadter Brothers was, it seems to me, sufficient to satisfy the terms of the policy. The bars were consigned to them, and they were entitled to receive them by force of such consignment, immediately on the arrival of the same in New York. The same were shipped in the manner customary at San Francisco, where the amount was less than $30,000. There is no evidence that this was not done with the full knowledge and consent of the carrier; and it is not proved that the *Page 400 defendants were ignorant of the custom prevailing at San Francisco, in respect to the shipment of treasure, and I think, they should be presumed to know the usage pertaining to this particular class of shipments at that port. And in this view, the shipment and the risk are clearly within the policy. But upon a question of this kind, and indeed where the construction of written instruments is in doubt, the acts and conduct of the parties may be referred to, and are generally considered by the courts, in giving a construction to such instruments. Upon this ground, I think the proof of the acts of the defendant's president, in respect to the case in question, were properly received in evidence at the trial. It is proved, and not denied, that immediately upon learning of the loss of the Golden Gate, the plaintiffs telegraphed to Cohen Co., as follows: "Shipped, July 21st, under bill of lading of Newstadter Bros., to Newstadter Bros., $12,000 insured under our policy with the Columbian Insurance Company. "(Signed) H. BLOCK Co." That this telegram was immediately taken by a clerk of Cohen Co., to the defendant's office, and shown to the president of said company, and his attention particularly drawn to the language of the telegram; when he said, "it made no difference." The meaning of this remark was, that the shipment under the bill of lading to Newstadter Co., made no difference, and that it was the same in effect, as if the bill of lading had been in favor of Cohen Co. upon its face, in respect to said gold. Such was the practical construction of the bill of lading, in connection with the policy, made immediately by the president of the defendant's company on hearing the facts. But he went further and directed the witness to the entry clerk to have the matter entered as upon the policy, in conformity with its terms of direction to report the loss immediately to the company, and thereupon the said entry clerk made, at the same time, the following entry: *Page 401 "August 7, 1862. Golden Gate from San Francisco to New York; treasure $12,000, rate of premium one and a half per cent. Premium $180." I do not see why this was not a distinct and practical recognition and acceptance by the defendants of the loss as properly sustained, and comes under said policy upon their own construction of the law; I do not see, therefore, why we may not adopt the same construction of their policy that was put upon it by the president of the defendant's company, not as an alteration or modification of the contract, but as the true construction of the same, according to the intent, meaning and understanding of the parties. This view is fortified by the further fact, proved at the trial without objection or exception, that the defendant's company afterward received payment of the said sum of $180, the premium on such gold under said policy. The witness testified expressly that this sum of $180 was afterward paid in account; that the company held an insurance note of Cohen Co., and their premium was charged against the note, and sometime afterward the company returned them fifteen per cent of their premium of $180 in cash, and the amount due Cohen Co. for return premium was settled, including their $180 premium. I do not see why the payment was not a ratification of the act of the president in recognizing the risk and loss as covered by the policy; why it does not preclude the defendant from setting up any defence to said policy. I think the judgment should be affirmed.