Stanley Matthews

“ 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 ”

“ The circumstances in evidence might be such that a jury, or a court sitting to try the case without a jury, would believe, as the more reasonable probability, according to the ordinary and observed course of human conduct, that the fact disputed had or had not actually taken place ”

“ In point of fact the Sun Company insured the Ocean Company against the risk which the latter incurred by its policies, and, unless there was misrepresentation, fraud, or intentional concealment by the Ocean Company, the Sun Company should pay the loss which the other sustained, and against the hazard of which it agreed to insure the Ocean Company. ”

“ 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. ”

“ The findings of fact made by the circuit court as the basis of its conclusions of law are as follows:
(1) At the several times hereinafter mentioned, the libelant and the defendant were insurance companies engaged in the business of insuring against losses by perils of the sea. The libelant, to be referred to herein as the Ocean Company, was incorporated under the laws of the state of Maine, and had its principal place of business at Portland, in that state. ”

“ Of this second charter the Ocean Company had full knowledge, having, on February 5, 1864, insured to Pennell, a part owner, his interest in both the ship and this charter on the voyage described as 'at and from New York to, at, and from San Francisco, Callao and the Chinchas.' And on March 20, 1864, Melcher, one-eighth owner and master, by letter to his agent, Sawyer, directed the latter to insure his interest in the ship and both charters, specifically describing them, and primage and personal effects on board. ”

“ I think, really, considering that you have the risk on charter, primage, and property to San Francisco at full rates, you should take the war and marine to San Francisco and Chinchas on C. S. Pennell at 6 per cent., as there is or will be but little risk in the Pacific after leaving San Francisco. ”

“ January 30th, while the ship was in New York, loading under her San Francisco charter, and advertised for that voyage, her master chartered her again to the Peruvian government. By the terms of this charter she was to sail from New York on or before June 1, 1864, to San Francisco, and thence proceed, with all convenient dispatch, to Callao, Peru, and from thence, if on inspection she should be found to be well conditioned for the voyage, to the Chincha islands for a cargo of guano to be taken to Hamburg or Rotterdam. The freight to be paid was at the rate of £4 per ton of 20 cwt. ”

“ At the conclusion of the interview he was instructed by the vice-president of the Sun Company to go forward with the defense, and make every point possible. He was paid at the time $100, for which he gave a receipt, as follows: 'NEW YORK, November 2, 1869.
'Received from the Sun Mutual Insurance Company $100, 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. ”

“ Nor will the assured be permitted to urge, as an excuse for his omission to communicate material facts, that they were actually known to the underwriters, unless it appears that their knowledge was as particular and full as his own information. It is the duty of the assured to place the underwriter in the same situation as himself ”

“ Those * * * on charter per Chas. S. Pennell, $10,700, in conformity thereto. For the marine risk per Chas. S. Pennell to San Francisco, thence to Callao and Chinchas, our regular tariff rate is 4 1/2 per cent.; the war risk is worth the same, but we propose to enter for both marine and war on $5,000 for 4 per cent.'
(13) To this the president of the Ocena Company replied, under date March 26th, as follows ”