ERROR to the circuit court of the district of Columbia.
The former judgment of the court below in this cause, in favour of the now plaintiff in error, having been reversed in this court, and the cause sent back for the trial of the issues of fact,*fn1 *
the plaintiffs in error, before the cause could be regularly called for trial according to the rules and practice of the court, moved the court below for leave to amend the pleadings by adding to the former eight pleas, a ninth and a tenth plea, in the words following:
9th plea. And the said defendants, by their attorney aforesaid, by leave of the court, and by virtue of the statutes in such cases made and provided, for further plea in this behalf say, that the said plaintiff ought not to have and maintain his action aforesaid against them, because they say, that the said marine insurance company (by the act of assembly of Virginia incorporating said company, which act of assembly they now bring here into court) are authorized to make rules and regulations for the conducting the business of the said corporation, and that one of their said rules and regulations requires that every order for insurance shall be made in writing, and shall contain the name of the vessel and master, the place from whence and to which insurance is required to be made, with as full a description of the vessel and voyage as can be given thereof, and especially as to her age, tonnage and equipment, and that it was always and is the practice of the said insurance company to make no insurance upon the body of a ship, her tackle, apparel and furniture, beyond the reasonable value thereof according to the representation and description given thereof as to her age, tonnage and equipment, which rule and practice diminishes the risks of insurance in ¢regard to losses contrived, designed, effected and concealed by the insured when they are greatly over insured; and that the said rule and practice was, at the time of making and concluding the contract aforesaid in the declaration mentioned, well known to each of the said parties making the said contract; and that to induce them, the said defendants, to sign, seal and deliver the aforesaid policy of insurance, thereby insuring to the value of eight thousand dollars upon the body, tackle, apparel and other furniture of the brigantine Hope aforesaid, he the said plaintiff, in effecting the said policy on the 30th of September, in the year 1799, at the county aforesaid, stated and represented that the said brigantine in the month of July, in the year last mentioned, was a stout well built vessel of about 250 tons burden, in good order, and well found in sails, rigging, &c. built in Massachusetts, and from six to seven years old, and requested an insurance upon the said brigantine, her tackle, apparel and furniture, rating her value at the sum of 10,000 dollars for the voyage in the declaration mentioned at the commencement of the risks to be insured. And the plaintiff represented to the defendants on the same 30th day of September, in the year 1799, at the county aforesaid, that the said brigantine, her tackle, apparel and furniture, were of the value of 10,000 dollars, at the time the risks of the voyage to be insured by the contract aforesaid, would commence; and the defendants aver, that in consequence of the said representation, and placing full faith and credit therein, they were induced to sign, seal and deliver, and did sign, seal and deliver the said policy of insurance on the said 30th day of September, in the year aforesaid, at the county aforesaid, to the plaintiff, thereby agreeing in the said policy to fix the value of the said origantine, her tackle and apparel and other furniture, at the sum of 10,000 dollars, and thereby insuring to the amount of 8,000 dollars for the voyage aforesaid, upon the said brigantine, her tackle, apparel and furniture. And the said defendants further aver, that the said brigantine Hope was not, in the month of July, in the year aforesaid, or at any time, a well built vessel of the burden of about 250 tons, and was not from six to seven years old in the said month of July, in the year aforesaid, but was much older than from six to seven years old in the said month of July, in the said year, that is to say, more than eight and a half years old, and had been ill built in the year 1790, in the province of Maine, in Massachusetts, and thereafter was raised upon and rebuilt; that the value of the said brigantine, her tackle, apparel and furniture, was never at any time whatever equal to one half the said sum of 8,000 dollars. And the defendants say that the difference aforesaid between the true built, age, tonnage and value of the said ship, and the aforesaid represented built, age, tonnage and value thereof was material in regard to the risks of the voyage in the said policy of insurance mentioned, and this they are ready to verify; wherefore they pray judgment, &c.
10th plea. And the said defendants, by their attorney aforesaid, by leave of the court and of the statutes in such cases made and provided, for further plea in this behalf say, that the said plaintiff ought not to have or maintain his action aforesaid against them, because they say that the said policy of insurance was had and obtained of them by means of the fraud of the said George F. Straas in the declaration mentioned, with intent to deceive and defraud the said defendants of a large sum of money that is to say, of the difference between the just and fair value of the said brigantine, her tackle, apparel and furniture and the sum of 8,000 dollars intended to be insured by the said policy, which difference exceeded one half the sum last mentioned, that is to say, exceeded 4,000 dollars, and this they are ready to verify; wherefore they pray judgment, &c.
But the court below refused to permit the pleadings to be so amended, in consequence of which the cause went to trial upon the three issues of fact which had already been joined, viz.
1. That the defendants 'have well and truly done and performed all things they by the said policy of insurance were bound to perform.'
2. That the brigantine Hope 'was not taken and seized by certain British vessels and carried into Jamaica and there libelled, condemned and sold in manner and form as in the declaration is set forth;' and,
3. That the brigantine Hope was not, when she sailed from her last port in the island of St. Domingo, on the voyage insured, a good, sound, staunch, seaworthy ship, able to perform the voyage insured.
Upon the trial of these issues the defendants offered evidence of the facts stated in the ninth and tenth pleas, which the court rejected as inapplicable to either of the issues. To which refusal the defendants excepted.
The defendants also offered in mitigation of damages, evidence to prove that the vessel, at the time she sailed upon the voyage insured, was no worth one half the sum insured, and that the high valuation in the policy was produced by an untrue and unfair representation, on the part of the insured, of the age, tonnage and built of the vessel, and that the misrepresentation in those respects was material to the contract of insurance, and thereupon prayed the court to instruct the jury that if they found the facts to be so, they ought not to take the valuation stated in the policy as the true value of the subject intended to be insured, but in assessing the damages of the plaintiff, they ought to take the just value of the said brig, &c. at the commencement of the risk insured, although all the issues of fact should be found for the plaintiff. Which instruction the court refused to give, having already instructed the jury, in case they should find the issues for the plaintiff, to reserve, for the decision of the court, the question as to the principle upon which the damages should be estimated and assessed. To which refusal the defendants also excepted.
The plaintiff, for the purpose of proving the libe and condemnation in the declaration mentioned, produced and read to the jury, without objection at the time on the part of the defendants, a copy of the whole record and proceedings in the vice-admiralty court at Jamaica, respecting which the counsel for the parties had entered into the following agreement, viz. 'The defendants waive all exceptions to the authentication of the record of the proceedings in admiralty concerning the condemnation of the brig Hope, but save every objection to the contents of the said record excepting the matter of authentication. The plaintiff admits, as evidence, the affidavit of Gibson & Evans.'
After the reading of which, the defendants, in order to prove that the vessel was not, at the time of capture, in the due course of the voyage insured, and the condition she was then in, offered to read in evidence to the jury, from the said record of proceedings, a copy of the deposition of William Murray, taken in preparatorio, to be used in the said court of vice-admiralty.
But the court instructed the jury that the said deposition of the said William Murray, so taken, is not competent evidence in this cause to prove the said facts. To which instruction the defendants excepted.
The plaintiff moved the court to direct the jury, that if, from the evidence, they find all the issues of fact for the plaintiff, then they should find their verdict in the following form, viz. 'We of the jury find all the issues of fact joined in this cause for the plaintiff, and do assess his damages by reason of the breach of covenant in the declaration mentioned, to the sum of _____. The amount of damages so assessed to be nevertheless subject to the opinion of the court upon the following point reserved, viz. if the value fixed in the policy, set out in the declaration be not conclusive upon the parties, and it be competent to the jury, under any of the issues of fact joined in this cause, to hear evidence concerning, and to inquire into the real value of the vessel in the said policy mentioned, so as to reduce the agreed value mentioned in the said policy, and to estimate the plaintiff's damages according to such reduced value, as actually proved, then, and not otherwise, we assess the plaintiff's damages (in lieu of the sum above assessed) to the sum of _____. To which direction the defendants objected, and prayed the court if they gave the jury any instruction upon the subject, to direct them to find the smaller sum in damages, if the court should be of opinion that it was competent for the jury to hear evidence concerning the misrepresentation as to the age, built, and tonnage of the vessel.
But the court refused to give the instruction prayed by the defendants, having before retused to suffer the defendants to give evidence of misrepresentation by the plaintiff in obtaining the policy, under either of the issues of fact joined in this cause, to which refusal the defendants had taken a bill of exceptions. But the plaintiff having consented to permit the defendants to give evidence of the real value of the vessel at the time the risks insured commenced, (saving the objection to the competency of any parol evidence upon any of the said issues of fact, concerning the real value of the said subject insured,) the court directed the jury to find their verdict as prayed by the plaintiff.
To which refusal and instruction the defendants excepted.
The jury found a verdict in the form directed by the court, and filled the first blank with the sum of 11,452 dollars and 34 cents, and the other with the sum of 6,441 dollars and 71 cents.
The court, after consideration, rendered judgment for the largest sum, being of opinion that the value stated in the policy ...