1863. HURRELL V. BULLARD and Another. manner, or in causing such policy or policies as aforesaid to be underwritten by sufficient and responsible underwriters; and the defendants, in the breach of their duty in that behalf, negligently caused to be underwritten as and for such policy as aforesaid a certain policy of insurance on the said vessel, tackle, furniture and appurtenances for the said voyage from and against the said perils and risks to the amount aforesaid by insufficient and irresponsible underwriters, and afterwards, and after the breach of duty by the defendants as last aforesaid, and whilst the said vessel was proceeding on her said voyage, the said vessel with the said tackle, furniture and appurtenances by such the perils and dangers of the seas was broken to pieces and sunk and wholly lost to the plaintiffs; and the defendants did not nor would do all such things as were then, to wit, at the time of the said retainer and em.ployment usually done by insurance brokers retained and employed in such manner and for such purposes as aforesaid, in order to enable the plaintiff to obtain payment of the monies which became due upon the said loss of the said vessel, tackle, furniture and appurtenances as aforesaid or any part thereof. And the defendants did not nor would inform the plaintiff who the said underwriters were (a), or enable the plaintiff to discover or identify them although requested by the plaintiff so to do, and although so to inform and enable the plaintiff was a thing then, to wit, at the time of the said retainer and employment, usually done by insurance brokers retained and employed in such manner and for such purposes as aforesaid; and by reason of the said neglect and breaches of duty by the defendants the plaintiff has wholly lost and been deprived (a) The breach is included in the duty laid, which (vide ante, p. 447) is to do all things usually done by insurance brokers. That is the special breach of duty, arising out of the general duty alleged to do all things usual, according to the custom, &c.; and it more nearly hit the facts than any other upon the evidence; vide post. of the monies and indemnity he would otherwise have procured and recovered. Common counts for money received by the defendants for the use of the plaintiff and on accounts stated. Pleas: 1. That the plaintiff did not retain or employ the defendants upon the terms and the purposes therein mentioned as alleged. 2. That they did cause to be made, according to the custom of merchant insurance, upon the said vessels, tackle, furniture and appurtenances, and did cause a policy of insurance to be made and underwritten thereon agreeably to and in accordance with the said retainer and employment. 3. (To the second count), that the plaintiff did not retain or employ the defendants upon the terms and for the purposes in that count mentioned and alleged. 4. That they did use due and reasonable care and diligence in and about effecting the said insurance in an available manner and in causing the said policy to be underwritten by sufficient and responsible underwriters, and did do all such things as were at the time of the said retainer and employment usually done by such insurance brokers as in the second count mentioned, in order to enable the plaintiff to obtain payment as therein alleged, and did not negligently cause to be underwritten a policy of insurance by insufficient or irresponsible underwriters, and did not neglect or refuse to inform the plaintiff who the underwriters were, to enable the said plaintiff to discover or identify them as in the said second count alleged. 5. Never indebted. Shee, Serjt., and J. J. Powell for the plaintiff. Lush and Honyman for the defendant. It appeared that the defendants Bullard and King were not insurance brokers, but carried on business only as insurance agents, and, according to their account, only VOL. III. I I F.F. 1863. HURRELL v. BULLARD and Another. 1863. HURRELL v. BULLARD undertook to get the insurance effected. In point of fact they, in July, 1861, got it effected through Foster, Lacy & Co., insurance brokers, whose names, and not the deand Another. fendants', were inserted therein as effecting it "as agents," "as well in their own names as for and on behalf of 'the parties interested.'" The insurance was effected for the amount directed, viz. 2507., and was underwritten by two persons, Harden and Steward, each for half. There was at the foot a note debiting Bullard and King to Foster, Lacy & Co., for the amount of premium 61. 5s. and stamp 10s., 6l. 15s., and the defendants got a trifling allowance from the brokers. They sent, as they said, a copy of the policy to the plaintiff, but omitting the memorandum at foot, and not mentioning the names of the underwriters. In November, 1861, when the loss was known, and the plaintiff sent the papers to the defendants, they sent him a copy of the policy, in which their names were inserted instead of Foster, Lacy & Co., and with a memorandum at foot making the plaintiff debtor for the premium and duty, adding 2s. 6d. for commission. In February, 1862, the plaintiff paid the amount to the defendants and took their receipt. When the plaintiff pressed the defendants for a settlement of the loss, he was referred by them (as he said) to Foster, Lacy & Co. The latter were connected in business with another firm of insurance brokersBashall, Lacy & Co., Lacy being a member of both firms. And it appeared, that the policy was actually underwritten by a clerk of Foster, Lacy & Co., in the names of Harden and Steward, the former being a partner in the firm of Bashall, Lacy & Co., and the other a correspondent of theirs at Yarmouth, for whom they were in the habit of underwriting. There were business transactions between the defendants' firm and the two firms of Foster, Lacy & Co. and Bashall, Lacy & Co., and the defendants had authorized them to underwrite for them. In March, Foster, Lacy & Co. suspended payment; and in April, the plaintiff not having been able to get payment, brought this action. According to the plaintiff's evidence, he had no know 1863. HURRELL v. BULLARD ledge up to this time who had effected the policy, or who and Another. were the underwriters. On the 15th of April, after action brought, the defendants got the stamped policy from Foster, Lacy & Co., who at the same time gave a memorandum of the adjustment of the loss (as of the 27th of March), and promised payment in a month. The defendants then gave up the original policy to the plaintiff, and told him the undertaking by Foster, Lacy & Co., and the plaintiff gave the defendants a receipt for the "stamped policy and other documents," adding, "Stop proceedings for recovery of same, it being understood the amount of the claim to be paid in a month from 27th March, 1862." The affairs of Foster, Lacy & Co. were soon after under liquidation, and in May the plaintiff received from these liquidators the sum of 1007. on account of the policy. The plaintiff swore that he never knew Foster, Lacy & Co. in the matter, and that he did not know until after action who the underwriters were, or that Harden was a member of the firm of Bashall, Lacy & Co.; and that he had asked the defendants again and again for the names and addresses of the underwriters, and could not get them, but was told to address them "care of Foster, Lacy & Co." The loss had been settled at 2357., and he had only got the 1007., leaving 1351. unpaid. The defendants were called, and swore that they had told the plaintiff who the underwriters were. Harden, one of them, a member of the firm of Bashall, Lacy & Co., was called for the defendants, and stated that he used to underwrite through Foster, Lacy & Co. Foster also was called; and it appeared that letters for Harden, addressed "care of Foster & Co." did reach him. 1863. HURRELL v. BULLARD and Another. But neither Lacy nor Steward, the other underwriter, was called. It appeared that Steward was a solvent and responsible person. Lush urged, for the defence, that there was no evidence that either of the underwriters was not solvent; that the defendants had done their duty as agents in effecting the policy. He contended that the first count wholly failed, because a policy was effected. COCKBURN, C. J., was of the same opinion on the latter point. Shee, Serjt., assented, and abandoned that count. Lush then insisted that the second count also failed, because it charged that the defendants were insurance brokers; but, COCKBURN, C. J.-It charges two things, the not duly effecting a policy, and the not duly informing the plaintiff' of the names and addresses of the underwriters. Besides, if the defendants undertook the duties of insurance brokers, the question may be, what those duties are? There is no express evidence, certainly, as to what is the duty of insurance agents as distinct from insurance brokers; but the question will be probably for the jury (a), assuming that an insurance agent undertakes to effect an insurance, or to get it effected, what is the extent of his responsibility? If the insurance is effected through brokers who are at the time responsible, is he responsible for them? That is a question for the jury, as matter of commercial usage within their knowledge (a), in the absence of express evidence upon it. No doubt the agents or brokers would not be insurers themselves, but are only bound to use due and reasonable care. But it would be (a) Hayes v. Tindall, Vol. II., p. 444; Foster v. The Bank of London, ante, p. 214. |