1866.

SEAGRAVE

v.

UNION

SURANCE Co.

the present Plaintiff also had an insurable interest; 2nd, that, assuming there was a complete contract passing the property to M'Carter, the real Plaintiff in Joyce v. Swann, MARINE AS- there might still be an insurable interest in the present Plaintiff, on the ground that he was an agent dealing with goods in his own name, making himself personally liable for freight, and personally liable to M'Carter; and 3rdly, that a beneficial interest in the Plaintiff was not necessary to maintain an action on a policy of insurance. They referred to 1 Arnould on Insurance (a), and Phillips on Insurance (b). [Willes, J., referred to Browne v. Hare (c)] The point as to variance was not pressed.

Temple, C. Russell and Cohen, in support of the rule, proceeded to show that there was a complete bargain between the Plaintiff and M'Carter, passing the property in the guano to the latter; but the Court intimated that the decision in Joyce v. Swann was conclusive on that point. They then argued that the Plaintiff had no insurable interest, stating that he never had physical control over the goods, nor had been consignee of them; that he was a mere conduit pipe to direct the destination of the goods for sale; that he had no lien in respect of any advance; that the facts proved at the trial were the same as in Joyce v. Swann, or, if different, were rather in favour of the present Defendants; and that if the form of the bill of lading were relied on, it was not conclusive against the Defendants. They cited, in addition to cases mentioned in the judgment of the Court, Lucena v. Craufurd (d); Morgan v. Price (e); Sparkes v. Marshall(f); and referred to Duer on Insurance (g), citing De Forest v. The Fulton Fire Insurance

(a) 3rd ed. pp. 66, 67.

(b) Pages 177, 178, s. 311, 3rd ed.

(c) 4 H. & N. 822.

(d) In error, 2 B. & P., N. R. 269; per Lawrence, J., pp. 300, 301;*

per Lord Eldon, pp. 321, 324.

(e) 4 Ex. 615.

(f) 2 Bing., N. C. 761.

(g) Vol. 2, pp. 104, 105.

Co. (a); Wolff v. Horncastle (b); Conway v. Gray(c); Carruthers v. Sheddon(d); and to 1 Phillips on Insurance (e). Cur. adv. vult.

valued

WILLES, J., now delivered the judgment of the Court: This was an action upon an insurance of guano, at 1,1507., on board the Ann and Isabella, from Liverpool to Londonderry.

The declaration averred interest in the Plaintiff, George Seagrave, only. The pleas denied, first, the policy, upon which nothing turns; and secondly, that the Plaintiff had an insurable interest.

On the trial, before Martin, B., at the last Winter Assizes at Liverpool, the Plaintiff had a verdict for 2007. In the last term the Defendant obtained a rule for a new trial upon various grounds, which came on for argument at the sittings after term, before Keating and Smith, JJ., and myself, when we took time to consider.

It appears that, in the year 1864, M'Carter, of Londonderry, suing in the name of Joyce, recovered in this Court against Swann and other underwriters, upon an insurance upon the same cargo for the same voyage, the sum of 1,2007., of which he received 1,1501. M'Carter's interest was alleged to be that of buyer of the guano, before its loss, from the now Plaintiff's firm; so that one set of underwriters has already paid the whole amount at which the guano was valued and insured in the policy now sued upon.

The details were as follows:- Upon the 14th of February, 1863, M'Carter, who had from time to time bought guano of or through the now Plaintiff's firm, wrote to them, stating that if it suited them to ship soon 100 tons of guano, at 6s. 6d. freight, to be paid for the 1st of May, they might do so. Upon the 26th of February the Plaintiff's firm wrote to M'Carter, stating that they had engaged the Ann and Isabella to take about 115 tons, at 6s. 6d.,

(a) 1 Hall, Rep. (American) 84. (b) 1 B. & P. 316.

and

(d) 6 Taunt. 14, and id, p. 209.
(e) Sections 175 and 309.

1866.

SEAGRAVE

v.

UNION MARINE As

SURANCE Co.

(c) 10 East, 536.

1866. SEAGRAVE

v

UNION

SURANCE Co.

that they expected to have the cargo on board about the middle of the next week, and proposed to draw upon him for it at 101. per ton. M'Carter must have made up his MARINE AS mind to take the cargo thus offered, for he did not write to countermand it; and upon the 2nd of March he effected an insurance, through one Joyce, of this very cargo, per Ann and Isabella, for 1,2001. Upon the 3rd, he wrote complaining that the price charged was 101. a-ton, when it was only 97. 15s. net in Scotland, but not refusing it; on the contrary, stating that he expected the usual allowance, which was a matter of course. Upon the 4th of March the cargo was shipped at Liverpool, under a bill of lading, making the goods deliverable "to the order of George Seagrave & Co. (the Plaintiff's firm), or to their assigns." The invoice was made out the same day, describing the guano as "delivered to the account of M'Carter," according to the letter of the 26th of February. Then the Plaintiff's firm having, upon the 4th of March, received the letter of the 3rd, effected with the present Defendants the policy upon which this action is brought, upon the cargo, valued at 1,150l., to which extent, from that time, there were two insurances. The Plaintiff at that time was at Belfast, and intended to visit Londonderry; and the invoice and bill of lading were forwarded to him, to be handed there to M'Carter. Upon Saturday, the 7th of March, in the evening, the Plaintiff arrived at M'Carter's private house, upon a visit, and informed him of what had been done, to which M'Carter made no objection. Afterwards, upon that night, the ship and cargo were lost. Upon Monday the 9th, before the loss was known, the Plaintiff and M'Carter went to the office of the latter, and there, without more, the bill of lading was indorsed by the Plaintiff, and handed to M'Carter with the invoice; and he accepted a bill for the amount. They learnt of the loss the same day; but, so far as appears, neither did M'Carter ask to have back, nor did the Plaintiff offer to return the bill; indeed, that would have been inconsistent with all that had

passed, and especially with M'Carter's tacit assent upon
the Saturday evening before the loss, and the payment
upon the Monday accordingly. Further, upon hearing of
the loss, M'Carter asked, not for his bill, but for the policy
effected by the Plaintiff, which the latter declined to give,
and referred M'Carter to his own underwriters. Both
parties, therefore, treated the purchase as being between
themselves effectual and binding, which it could not have
been unless complete before the loss. Accordingly, M'Carter
brought the action in the name of Joyce against his under-
writers; and principally upon his own evidence, with that
of the documents, but without calling the now Plaintiff as
a witness, he established in fact, to the satisfaction of a
London jury, under the direction of Erle, C. J., and after-
wards in law, to the satisfaction of this Court, that what
the parties, buyer and sellers, had agreed to act upon was
the true construction of the transaction; and that the sale
was completed by the letters of the 26th of February, acted
upon by the sellers by shipping on account of M'Carter,
and by M'Carter by not rejecting the offer, by insuring
upon the 2nd of March (the goods being at his risk as well
as on his account), by the letter of the 3rd of March, which
in this Court was considered as a reluctant assent to take
the cargo, by his assent and acquiescence, upon the evening
of Saturday, the 7th of March, when Seagrave (the Plain-
tiff) informed him of what had been done, by taking the
bill of lading, and paying upon the 9th, without any new
terms, showing that the transaction was complete at latest
upon the Saturday, and by acting upon the sale as valid
after news of the loss. The non-indorsement of the bill of
lading before the loss did not, it is scarcely necessary to
remark, exclude that conclusion: Coxe v. Harden (a);
Browne v. Hare (b). M'Carter, the buyer, thus obtained
judgment for 1,2007., and he has been paid 1,1507., the
whole amount at which the guano was valued in the policy
now sued
upon, and he paid the sellers as upon a success-
(a) 4 East, 211.
(b) 4 H. & N. 822.

1866.

SEAGRAVE

บ. UNION

MARINE AS-
SURANCE CO.

1866.

SEAGRAVE

ful adventure; so that the sellers got all they could have got if the cargo was safe, and thus both buyer and sellers were indemnified against any risk which was insured against MARINE AS by the Defendants, and it might have been supposed that

V.

UNION

SURANCE Co.

the insurers had heard the last of the matter.

It appears, however, that M'Carter was dissatisfied with the amount which he recovered in the name of Joyce, as to the following particulars detailed by him at the trial, viz., 501. of the former verdict not paid; 491. extra costs; 1047. difference between the interest which he recovered and the interest which he had to pay his own bankers, in order to raise money; 201. travelling expenses, not alleged to have come within the suing and labouring clause, or to have had anything to do with the insurance.

The mass of these items was irrecoverable under any circumstances against the underwriters upon either policy; and no one of them could by any proceeding be justly claimed against the present Defendants. M'Carter, however, took a different view of his rights; and it appears now plainly that, by arrangement between him and the Plaintiff, the present action was brought in effect to enforce payment of the enumerated items, though, under good advice, a verdict was not sought for the whole 1,150. -a measure which, if resorted to, would, we believe, have so demonstrated the impropriety of the claim as to prevent the actual result of a verdict in the Plaintiff's favour.

At the trial of this cause the Plaintiff's case was launched upon his own evidence, which was to the same effect as that given by M'Carter upon the trial of Joyce v. Swann, with these exceptions,-first, that, after the examination by counsel was over, in answer to a question put by the learned Judge (being the question for decision), the Plaintiff made the following statement: "I made the sale to M'Carter on the 9th ;" secondly, that the Plaintiff stated, that, instead of being principal in the actual or intended sale, his firm were only commission agents (not del credere) of Dixon & Co., of the same town. And, although the objection on