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Statement of the Case.

consideration, and the creditor may still sue for and recover the residue : but, if there be a bona fide dispute as to the amount due, that dispute

may be the subject of a compromise. When a claim not yet due is prepaid in part by the debtor, such prepay

ment may operate as a discharge of the whole claim if both parties intended it to be a consideration for such discharge; and whether both

parties so intended is a question for the jury. Circumstances attending the execution of a receipt in full of all demands,

may be given in evidence to show that by mistake it was made to express more than was intended, and that the creditor had, in fact, claims

that were not included. The plaintiff took out fire insurance policies upon a vessel in 10 companies

to the amount of $40,000 in all. The vessel took fire, and, in order to save it, it was scuttled and sunk, and the fire thus extinguished. It was then raised, taken to port, and repaired. The loss by fire, exclusive of the expense of raising the vessel, etc., was $15,364.78. The owner made claim upon the insurers for this amount for "loss and damage by fire and water as per agreement,” stating that he would make further claims " for expenses of raising the propeller,” and was preparing the statement of such expenses to submit with his subsequent claim.” The companies declined to pay such subsequent claim, but paid in advance the amount of the loss by fire so stated, taking receipts, expressed to be in full of all claims for loss or damage by tire, and in which it was further stated that the policies were cancelled and surrendered. The parties further signed a paper in which “ the loss and damage by fire” was certified at that aggregate amount, “ payable without discount upon presentation, and the amount was apportioned among the several companies. In an action brought by the owner to recover from the companies the amount of the claim for raising and saving the vessel, some $15,000, it was Held, (1) That parol evidence was admissible to explain the receipts, and to

show that they were not intended to cover the claim for raising,

etc.; (2) That the paper so signed by the parties was not in the nature of a

contract on the part of the owner.

The court stated the case as follows:

This case was brought before the court upon a certificate of division of opinion between the circuit and the district judges. The action was begun in November, 1884, upon two policies of fire insurance written by the Fire Insurance Association, defendant, upon the propeller St. Paul, of which defendants in error were owners, one of such policies being for $3500, and the other for $1500. On the same day actions

Statement of the Case.

were begun against six other insurance companies upon their policies on the same vessel, and an order was subsequently made that all the actions so commenced should abide the event and final determination of the one which the plaintiff's should elect to try. The following facts appeared upon the trial : In 1883, the plaintiffs, who were the owners of the propeller St. Paul, engaged in navigating the great lakes, obtained upon her fire insurance policies in ten companies, to the amount of $10,000. Plaintiffs also had $15,000 of insurance by marine policies on the same vessel at the same time. In all of these policies save one, it was provided that in case of loss by fire, the loss should be payable in sixty days after proofs of loss had been filed with the company. On November 10, 1883, while on a voyage from the lower lakes to Lake Superior, a fire broke out in the hold of the vessel, and to save her and her cargo she was scuttled and sunk, and the fire thus extinguished. She was subsequently raised and brought to Detroit for repairs, where she arrived on the 19th of November, and immediately began to discharge her cargo. A few days thereafter, and while her cargo was being unloaded, another fire broke out in her hold, and she was again sunk for the purpose of saving her, and was afterwards raised at considerable expense. On the 15th of December, a written agreement was entered into between the plaintiffs and the adjusting agents of the several insurance companies for the purpose of appraising the amount of loss caused by these fires, with a stipulation that the agreement should be “ of binding effect only as far as regards the actual cash value of or damage to such property covered by policies of said companies issued at their various agencies.” It was further added that the property on which loss or damage is to be estimated and appraised is the hull of the propeller St. Paul, including the tackle, awnings, furniture, engine and boiler connections and appurtenances thereto belonging," with a further memorandum, following the signature of Wickham, but preceding those of the insurance companies, that “this agreement does not apply to or cover any question that may arise for saving boat and cargo.” The adjustment under this agreement of the

Statement of the Case.

direct loss by fire was completed December 26, and formal proofs of loss were also sent to the several insurance companies in New York, and were received in due course of mail. The amount of the loss according to the report of the appraisers, exclusive of the expense of raising and saving the vessel and cargo thus adjusted, aggregated $15,364.78, and the amount proportioned to the plaintiffs in error was $1920.60. The adjusting agent in sending proof of loss to the companies accompanied the same with the following letter to each of such companies :

“Buffalo, January 12, 1884. “Gentlemen : I enclose herewith proofs, John W. Wickham, Jr., managing owner, for loss and damage prop. St. Paul, which I trust will be found satisfactory: “ The claim as made covers only the loss and

damage by fire and water, as per agreement,
on the tackle, awnings, apparel, furniture,
etc., of...

$1,735 08
And the appraisers' award on hull, engines,
mach'y, etc., of..

13,629 70 Aggregating in all.....

$15,364 78 “ The assured will make further claims for expenses of raising the propeller, and is now preparing the statement of such expenses to submit with his subsequent claim.

“ Yours truly,

“ W. D. ALLEN, Adjuster.

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At the trial, it was admitted that the cost of raising and saving the vessel was also upwards of $15,000. The plaintiffs admitted that they had been paid the cost of repairing the vessel, as set forth in the proofs of loss prepared and forwarded to the companies, but claimed that they had not been paid any part of the cost of raising and saving the vessel; that before the commencement of this suit they demanded payment thereof, which was refused, the insurers denying liability therefor; and that the same remained unpaid.

Statement of the Case. .

The defendants claimed that the payment of the cost of repairs was made by way of accord and satisfaction of the plaintiffs' entire claim, and offered in evidence the following receipts:

"$1344.42

January 19, 1884.

100

"Received from the Fire Insurance Association of London, England, thirteen hundred and forty-four 42 dollars, it being in full of all claims and demands for loss or damage by fire which occurred on the 10th and 24th days of November, 1883, to property insured by policy No. 180,617, Buffalo, New York, agency, and in consideration of said payment said policy is hereby cancelled and surrendered to said company, and all further claims by virtue of said policy forever waived.

"(Signed)

JOHN W. WICKHAM, Jr.,

(6

Managing Owner.

"W. B. COMSTOCK,

"per WICKHAM, Jr."

There was also a receipt endorsed upon the policy No. 180,617 as follows:

January 19, 1884. "In consideration of four 4 dollars return premium, the receipt of which is hereby acknowledged, this policy is cancelled and surrendered to the Fire Insurance Association. (Limited) of England.

"(Signed)

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JOHN W. WICKHAM, Jr.,

"Managing Owner.

"W. B. COMSTOCK,

"per WICKHAM, Jr."

A similar receipt for $576.18 was given by the plaintiffs to the defendant, in form precisely like the first (except as to the number of the policy and the amount), on account of the second policy issued by the association. Similar receipts, all of the same date, except two, which were a few days later, were given to the other companies concerned, all of which

Statement of the Case.

were put in evidence by the defendant. The receipt to the Mechanics' Fire Insurance Company was expressed to be "in full satisfaction of all claims and demands upon said company for loss and damage by fire," etc., and "in consideration thereof said company is hereby discharged forever from all further claims by reason of said fire, loss and damage, and said policy of insurance is hereby assigned, with all claim. thereunder, to said company, and said policy is hereby cancelled in full and surrendered to said company." The receipt to the London, Liverpool and Globe Insurance Company was for a sight draft, "which, when paid, will be in full compromise and payment of all claims and demands upon said company for loss and damage by fire," etc. The receipts to the other companies did not differ materially from those given to the defendant company.

The defendant also put in evidence the following paper signed by the plaintiffs, marked Exhibit QQ:

"New York, January 19, 1884.

"This is to certify that the loss and damage by fire which occurred on the 23d day of November, 1883, to the steamer St. Paul, is this day adjusted for the sum of fifteen thousand three hundred and sixty-four and 7 dollars ($15,364.78), payable without discount upon presentation of the policies to the several companies interested by the assured, and apportioned among the several companies as follows, viz.:

Insures

Pays Continental, of New York. $7,500 00 $2,880 90 London & Liverpool &

Globe....
Fire Insurance Association
Queen's, of England .....
Fire Ins. Ass'n, 2d policy.
Security, of New Haven.
Exchange, of New York..
Mechanics', of New York.
German, of Pa.............

6,000 00
3,500 00
7,000 00

1,500 00
2,500 00

2,500 00

2,500 00

2,500 00

2,304 70-Paid.
1,344 42-Paid.
2,668 84-Paid.

576 18-Paid.

960 30-Will remit.

960 30-Paid 1, 19, '84

960 30-Paid 1, 19, '84 960 30-Will remit.

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