HUTCHINSON v. READ and Others. 1850. Jan. 23. on a policy of insurance stated that the policy was duly made by the plaintiff ants, whereby and the defend the latter in sured the plain- a twelvemonth, terms of the declaration then stated, that at the time of the making of the ASSUMPSIT on a policy of insurance upon the ship"Spar- A declaration tan.”—The first count of the declaration, after reciting, that at the time when &c., the plaintiff was the sole owner of the "Spartan;" and that the defendants were three of the directors of the Maritime Insurance Company; and that the plaintiff had caused to be made, by one J. H. his agent in that behalf, with the defendants, being such directors, a policy of insurance bearing date the 5th of October, 1846, by which the said ship "Spartan" was insured, lost or not, at and from twelve o'clock at noon on the 21st of September, 1846, to twelve o'clock at noon on the 21st of September, 1847, being the space of twelve calendar months, in port and at sea, at all times and in all places, and in all services in the foreign and coasting trade of the United Kingdom, but subject to the limitations thereunto annexed and hereinafter mentioned, including the risk of craft to and from the said vessel upon any kind of goods, &c. The declaration, after setting out the terms of the policy, one of the warranties therein expressed being, that the "Spartan" was not to sail from the West Indies or the Gulph of Mexico between the 1st of August and 12th of their vessels off January, &c., then proceeded to state the subscription of the policy by the defendants, and the payment by the plaintiff to the defendants, and the receipt by the latter, policy, and of the defendants' promise thereinafter mentioned, the defendants, were used and accustomed to allow to all persons insuring ships with them for the period of twelve calendar months, to take risk for any one or more en tire month or months for which such ves sels were insured, and, upon giving notice thereof to the insured, to consider such vessels as off risk, and not subject to any of the terms of such policies until such vessels were again taken upon risk, and notice thereof given to the defendants, and to make a return to the persons so insured of part of the premium during each of such entire month or months. The declaration then averred, that the plaintiff had notice of the custom; that the vessel was taken off risk for a month, and that the plaintiff had claimed the sum of 31. 128. as a return of the premium; and that it was then agreed between the plaintiff and defendants, that that sum should be accepted in discharge of the claim, and that the vessel should be considered as again on risk for the residue of the twelvemonth, and that the policy should continue in full force for the unexpired residue of such period. The declaration then contained an averment of mutual promises, that the vessel was again on risk, and that, during the residue of such period, she was wholly lost. There were then averments of compliance with the warranties by the plaintiff during the continuance of the policy and after the vessel was again on risk:-Held, that the declaration was bad in substance, for not alleging a compliance with the warranties during the whole period the vessel was on risk, for that, either the vessel was on risk again under the original contract, or upon a new agreement; in which latter case, the agreement was void for want of a sufficient consideration. VOL. IV. DDD EXCH. 1850. V. READ. of the sum of 567. 14s. as a premium for the insurance HUTCHINSON of 600l. as in the policy mentioned. The declaration then contained an averment that "the said policy being so made, and within the said period of twelve calendar months in the said policy mentioned, and before the making of the promise of the defendants hereinafter mentioned, to wit, on the 20th of February, 1847, the said ship called the "Spartan" was in the river Tyne, within the port of Newcastle; and at the time of the making of the said promise the defendants hereinafter mentioned were used and accustomed to allow to all persons insuring ships with them for the period of twelve calendar months, to take their vessels off risks by such policies insured against, for any one or more entire month or months for which such vessels were insured by such policies, and upon giving notice thereof to the defendants to consider such vessels as off risk, and not subject to or within any of the terms in such polices contained, until such vessels were again taken upon risk, and notice thereof given to the defendants; and to make a return to the persons so insured of part of the premium paid by them on such insurances, during each entire month or months as each of their said vessels should be off risk as aforesaid; of which said usage and custom the plaintiff, at the time of the making of the said policy and the promise of the defendants hereinafter mentioned, had notice; and the plaintiff, on the faith of such usage and custom, and after the making of the said policy, and during the said period of twelve months in the said policy mentioned, and before the making of the said promise, &c., took the said vessel off risk according to the said usage and custom, and laid the said vessel up in the said river Tyne for one entire month of the said months in the policy mentioned, viz. from &c., to &c., and then, to wit, on &c., gave notice thereof to the defendants, and the said vessel remained laid up, and was not taken again on risk, according to the said policy, dur ing the whole of the said last mentioned month; and the plaintiff, before the making of the promise of the defendants thereinafter mentioned, had claimed and had required of the defendants, according to the said usage and custom, a certain sum of money, to wit, the sum of 31. 12s., as and for such return of premium as aforesaid." The declaration then averred, that after the making of the policy, and before the making of the promise hereinafter mentioned, to wit, on &c., it was arranged and agreed between the plaintiff and the defendants, that the latter should pay and return to the plaintiff, and that he should accept, a certain portion of the said premium so paid by the plaintiff, to wit, the sum of 31. 12s., in full satisfaction and discharge of his said claim; and that the same was then paid accordingly; and that the said vessel should then be considered and be again upon the said risks in the said policy mentioned during the residue of the said twelve months then to come and unexpired; and that the said policy, memorandum, and limitations therein contained and referred to, should thenceforth remain and continue in full force, and be mutually observed, &c., during the residue of the said period of twelve months then to come and unexpired, in the said policy mentioned. It was then averred, that in consideration of the premises it was mutually agreed, and that the parties mutually promised, to observe and perform and fulfil all things in the said policy, &c., contained, during the residue of the said period of twelve months. It was then alleged, that after the vessel was again on risk, and during the said period of twelve months in the policy mentioned, the vessel proceeded on her voyage, and was wholly lost by perils of the sea. The declaration then contained an averment of the plaintiff's interest in the vessel, and that, during the continuance of the said policy, and from the time of the making of the said promise of the defendants therein before mentioned, the plaintiff had always observed, performed, fulfilled, and 1850. HUTCHINSON V. READ. 1850. v. READ. kept all things in the said policy, memorandum, and limitHUTCHINSON ations contained, on the part and behalf of the assured to be observed, performed, and fulfilled; and that, from and after the continuance of the said policy, and the said risks thereby insured, and the making of the said promise of the defendants as therein before mentioned, the said vessel did not, during the remaining currency of the said policy, sail, &c., of all of which the defendants had notice; by reason whereof they became liable to pay the amount of insurance. The declaration, after other averments which are immaterial, concluded by laying as a breach the nonpayment by the defendants of the sum insured. Special demurrer, assigning for causes (inter alia) that the count did not allege with proper and sufficient certainty, or at all, that the said ship did not at any time during the space of twelve months during which time the ship was insured, or at any time whilst the ship was on risk, sail from the West Indies or Gulph of Mexico between the 1st of August and the 12th of January, &c.; and that it is not there properly stated, either that no breach of the said warranties was committed, or that the defendants waived or released the said breaches of the said warranties; and that, if any breach of the warranties had been committed before the defendants' alleged promise, the count was bad for not shewing any fresh consideration for the defendants' promise, &c.-Joinder in demurrer. Montague Smith, in support of the demurrer.-The main objection to the declaration is the absence of any averment that the plaintiff has complied with the warranties. It is consistent with all the allegations which it contains, that there was a breach of the warranties before the vessel was taken off risk. The contract was one whole and entire contract for the insurance of the vessel for the period of twelve months, and there was no new and binding contract upon the vessel being again on risk. If there was such a promise as that stated, the agreement is void, as there is no new consideration. Supposing the usage and custom, as here set out, to be part and parcel of the contract, as in Hutton v. Warren (a), the contract is still one entire contract, and the plaintiff ought to have averred performance of his part of it; and when the vessel was on risk, the underwriters would be entitled to the whole of the premium, a certain definite proportion of it being repaid during such time as the vessel might be taken off risk. Watson, contrà.-The declaration is good. The usage and custom stated is, that the assured shall be at liberty to take the vessel off risk for a month or more, upon a proper notice being given. The declaration then states that the vessel was so taken off, and that the defendants claimed the sum of 3l. 12s. to be returned; and that it was thereupon agreed, that from that time forward the plaintiff would comply with the warranties, and the defendants would insure the vessel, and that she was lost during the latter period. [Parke, B.-The usage or custom is not stated as any part of the contract. The assured would not be under any obligation to return the premium. Is there any consideration for the new promise?] The vessel's being taken off risk for a month or more, according to the notice, is a sufficient consideration, as in Longridge v. Dorville (b), where it was held, that the giving up of an uncertain claim was a sufficient consideration for a promise to pay a stipulated sum. [Platt, B.-It appears to me that both the consideration and the promise move from the defendants.] The fact of the vessel being off risk is the consideration. That is for the benefit of the plaintiff, the value of which is of an undefined amount. 1850. HUTCHINSON v. READ. |