Joseph Story

“ The rule of law is, that if, after an order for insurance, a loss happens, it is the duty of the assured to countermand the order, where there is probable ground to believe, that, by the exercise of reasonable diligence, it will arrive in time. ”

“ Where the facts are not disputed, the Judge often suggests, in a strong and pointed manner, his opinion as to the materiality of the concealment, and his leading opinion of the conclusion to which facts ought to conduct the jury. ”

“ Coiron might fairly have presumed, that one of the three letters, ordering insurance, might have reached Mr. Stoney, long before the loss, particularly the one via Savannah.
The questions in this cause are all unmixed questions of fact, and they were improperly decided by the Court below.
The language of the instruction is peremptory, not by way of advice as to the facts, and was considered as binding on the jury. The question of materiality as to concealment, is always a question exclusively for the jury. ”

“ Should you feel disposed to enter into a connexion of business with us, and honour us with an answer, we could, if you are so inclined, commence with an adventure of a hundred bales of cotton, for mutual account, and successively enlarge the speculation, if the result prove satisfactory. ”

“ The Creole was completely rebuilt and coppered at Charleston, S.C.. in last summer, at great expense, and is now considered a remarkably fine vessel. She was, and I presume still is, owned by McLanahan and Bogart, and J. J. Coiron. The latter gentleman was on board her, and I presume is returning in her to New-Orleans: He writes from Havre, under date of 20th October, but does not say when the brig would sail. She sails under a certificate of ownership. What will be the premium on the above risk? ”

“ The same case is reported more fully and more accurately by Mr. Park on Insurance, p. 290, where it is perfectly clear, that the point of materiality was left to the jury. 'The question is, (said his lordship,) whether this be one of those cases which is affected by misrepresentation or concealment. If the plaintiffs concealed any material part of the information they received, it is a fraud, and the insurers are not liable;' and the jury found a verdict for the defendant, under this direction. ”

“ This cause came on, &c., on consideration whereof, It is considered by this Court, that there is error in the opinion of the Circuit Court, given to the jury upon the prayer of the defendants' counsel;-that upon the whole evidence in the case, as stated in the record, the plaintiffs are not entitled to recover, and that the verdict of the jury ought to be for the defendant; that opinion having withdrawn from the proper consideration of the jury, matters of fact in controversy between the parties. ”

“ Stoney applied to the Fire and Marine Insurance Company, and to the Union Insurance Company in Charleston, for insurance on the Creole, and both offices refused the risk, upon the ground that they ought to have received account of the arrival of the brig before that time. ”

“ John Joseph Coiron, one of the plaintiffs, while at Havre de Grace, on the 19th of October 1823, addressed to Mr. John Stoney, of Charleston, the following letter:--
Havre, October 19th 1823.
Mr. John Stoney, Charleston--
DEAR SIR:-Please to have in red, for my account, for the account and risk of whom it may concern, ten thousand dollars on the brig Creole, of New-Orleans, Captain Jacob Goodrich, for New-Orleans, touching at the Havana. The brig and boats in the best order, having a round house on deck, containing fourteen births; the crew are seventeen in all. We intend sailing to-morrow. ”

“ The first is, the unseaworthiness of the ship, at the time when she broke ground at Havre, and commenced the homeward voyage; by reason of the master and a sufficient crew not being then on board. The second is, the laying off and on, near the port of Havre, after departure on the voyage, for several hours, waiting for the master to come on board ”

“ There is no general rule on the subject. It depends, like every other species of concealment, on its materiality to the risk, and it was not material here. Foley vs. Moline, 5 Taunt. 430. 1 Camp. 116. Fort vs. Lee, 3 Taunt. 381. 1 Marshall, 483, 484. Mackay vs. Rhinelander, 1 John Cas. 408. 1 Sergeant & Lowber, 144.
The usage in Baltimore, is to calculate the sailing on the day of the last advices in port; which the order in this case stated to be 20th of October. The duty of disclosure is confined to facts, not to the conclusion of other men from the same facts. Phill. 100. Bell vs. ”