fence. An agent of those interested, including another company having a risk upon the voyage, was sent to Rio Janeiro to ascertain the facts in relation to the loss, and report. In the mean time the suit upon the policy was suffered to remain in the court without being pressed. At the October Term, 1869, the counsel for the plaintiff insisting that something should be done, it was agreed, on behalf of The Ocean Company, that the case should, if possible, be tried at the January Term, 1870. In November, or late in October, 1869, the counsel on the part of The Ocean Company visited New York for the purpose of having a personal interview in respect to the case with the officers of The Sun Company. He there met the then vicepresident of the company. At the interview which then took place, the points of defence that had been previously suggested by the companies having been discussed, the counsel stated that, in his opinion, they could not be sustained by the evidence, but that he intended to make the point that the Rotterdam charter was not included in the risk as described in the policy. He said, however, that he had been informed by the attorneys who conducted the case for the plaintiff they had extrinsic evidence which would establish the liability and which they expected to introduce. This extrinsic evidence he considered inadmissible, but at the same time said that if admitted, the defence to the action would undoubtedly fail. He then informed The Sun Company that upon the presentation of the evidence on the trial he should object to its admission, and he had no doubt the presiding judge, under the practice of that State, would take the advice of the Supreme Court upon that question before proceeding further. If the evidence was ruled out, he expected to succeed in his defence; but if admitted, he had little hopes. He did not at that time know precisely what the testimony would be, and he did not communicate to the company the particular fact relied upon. 24. At the conclusion of the interview he was instructed by the vice-president of The Sun Company to go forward with the defence, and make every point possible. He was paid at the time one hundred dollars, for which he gave a receipt as follows: "NEW YORK, Nov. 2d, 1869. "Received from The Sun Mutual Insurance Company one hundred dollars, on account of legal expenses and services for defending The Ocean Insurance Company of Portland from claims for loss on charter and primage in case of the ship 'C. S. Pennell,' reinsured by The Sun Mutual Insurance Company for The Ocean Insurance Company. "JOHN RAND." 25. At the April Term, 1870, the cause came on for trial, and the questions were raised upon the admissibility of the extrinsic evidence, and reported to the Supreme Court for its opinion. The testimony objected to included the deposition of Sawyer, the agent of the insured, as to what transpired between him and The Ocean Company at the time the insurance was effected; the letter from the insured to Sawyer specifying the risk to be taken, and which was submitted to the company by the agent, as showing the authority under which he acted, and also the Rotterdam charter. 26. On the 6th of October, 1870, the attorney of The Ocean Company sent The Sun Company a copy of the case thus made, which contained a statement of the evidence offered and objected to. In the letter transmitting this document, the attorney said: "The question now presented to our court is simply whether he (the insured) shall be allowed to put in the testimony. If not allowed, there is an end of the case. If allowed, then we go to trial upon other points of defence." 261. In reply to this the president of The Sun Company wrote as follows: "NEW YORK, Oct. 15, 1870. "Messrs. J. & E. M. RAND, Portland, Me. "GENTS, Yours of 6th instant was duly received, also the printed documents which you sent, and which we have perused carefully. "It is shown by the testimony that the policy was made in accordance with the application of the plaintiff, and that there was no misunderstanding in relation thereto calling for the admission of evidence outside of the policy to explain it ; certainly none would be admissible to contradict it, for that would be setting up a new contract other than the policy itself which is sued upon. "It is important, therefore, to have excluded all evidence tending to contradict the policy. By the policy, as made, the plaintiff insured on charter New York to San Francisco, $6,550; on primage, $2,650; on personal effects, $1,500. There is no such charter shown; but the plaintiff sets up a charter to San Francisco and ports beyond, as described in the charter-party. The insurance of the charter to San Francisco was an insurance of only a part of said charter, not amounting even to a part insurance of the charter, because as the charter-party is to the effect that no money is to be paid by the charterers unless the whole round voyage is performed, and the contract being indivisible if no money was to be paid for the passage to San Francisco, the plaintiff had no insurable interest in that part of the charter; besides, the ship was loaded to her full capacity, and was carrying full freight on said passage outside of the charter, which was covered under special policies. The plaintiff has, therefore, by the perils insured against in the policy, suffered no loss beyond what he has already been indemnified for under his policy on freight. The interest of the plaintiff in the passage to San Francisco was, therefore, an impossible interest. I do not mean to say that he had no interest in the charter-party, but the risk under our policy being only to San Francisco, ended before the chatter-party could by any possibility be performed. I think, therefore, that the main question is the question of interest, and think that the above reasons will be found sound in law. Please let me hear from you as to your opinion of them, and also as to your line of defence, what your points are, in order that I may be able to form some opinion as to the ultimate issue of the suit. - -- "Yours respectfully, J. P. PAULISON, President." 27. In or about January, 1872, the Supreme Court decided that the testimony was admissible, and on the 16th of that month the attorneys advised The Sun Company of the result, and sent a copy of the opinion delivered. They also said that the case would probably come up again for hearing in a week or two, and asked that papers of any kind relating to the defence in the possession of The Sun Company might be forwarded to them at once. 28. Upon the receipt of this last letter the case was submitted by The Sun Company to its counsel in New York, who gave his opinion in writing to the effect "that The Sun Mutual Insurance Company's liability under the reinsurance policy cannot be extended beyond the obvious import of the terms in which it is expressed. The letter of Melcher ordering the insurance not having been exhibited to them, nor the explanations of Sawyer made to them, they cannot be affected by them; and hence, if the admission of extrinsic evidence as to what took place between Sawyer and The Ocean Company, when the original insurance was made, varies the case as between that company and Melcher from what it appears to be on the face of the original policy, I cannot see that it is a matter that concerns The Sun Company." 29. January 29 a copy of this opinion was forwarded by The Sun Company to the attorneys in Portland, and attention called to its contents. 30. At the January Term, 1872, the cause was again tried, and the testimony being all in, the case was withdrawn from the jury and submitted to the court to enter such judgment as law and the evidence required. The point was directly made. by The Ocean Company that the policy never attached, because the ship never actually or legally sailed under the Rotterdam charter. 31. On the 12th of July, 1872, the case having been printed, a copy was sent by the attorneys in Portland to The Sun Company, with a statement that the cause would come on for argument before the full bench in a few days. Permission was also asked to draw on the company at sight for $500 on account of fees and disbursements. 31. On the 5th of July The Sun Company replied, denying its liability to pay fees, and saying that, "as the suit is against The Ocean Company and not against us, you must look to them for your fees." It is also said in the letter that when the payment of $100 was made, in November, 1869, the case as subsequently developed was not fully understood. 32. A judgment was afterwards rendered in the suit against The Ocean Company for $9,200, and interest from April 27, 1865. 33. This judgment was satisfied by payments of The Ocean Company as follows: 34. The costs in the action which were included in the payment were $574.17. 35. The account of the counsel in the cause for their professional services and disbursements, over and above the $100 paid by The Sun Company, was $1,164.70. This was also paid by The Ocean Company, July 23, 1873, and was reasonable. 36. Payment of the amount of the judgment and the account for counsel fees, was duly demanded of The Sun Company before the commencement of this suit, and refused. The following is the statement by the Circuit Court of its conclusions of law : 1. The Sun Company's policy covers the Rotterdam charter. 2. The policy is not void because of any concealment by The Ocean Company. 3. The judgment in the Maine court against The Ocean Company is conclusive upon the issues there made and decided, and binds The Sun. 4. This action is not barred either by the Statute of Limitations or by lapse of time. 5. The Sun Company is bound in law to reimburse The Ocean for moneys expended on account of counsel fees, and the costs and expenses in defending the suit in the Maine court. 6. The libellant is entitled to a decree against the defendant for 1. Amount paid in satisfaction of the Maine judgment. $14,320 84 2. Amount paid for counsel fees, expenses, &c. 1,164 70 $15,485 54 With interest from July 21, 1873, and the costs in both courts. |