Mobile Marine Dock & Mutual Ins. v. McMillan & Son , 31 Ala. 711 ( 1858 )

BICE, C. J.

— Conceding that many commercial codes expressly require the contract -of insurance to be in writing, it is certain that the common law makes no such requisition. — 1 Phillips on Ins. 8; 1 Duer on Ins. 60. It is also certain, that there is no statutory provision of force in this State, which requires an agreement entered into in this State, to insure against loss by fire, tobe reduced to writing. In the absence of any such statutory provision, the question whether such an agreement is valid must be determined by the eommon law. — The State v. Cawood, 2 Stew. R. 360; Pierson v. State, 12 Ala. R. 149; Harkness v. Sears, 26 Ala. R. 493; Van Ness v. Packard, 2 Peters, 137; Sandford v. The Trust Fire Ins. Co., 11 Paige, 647; Manuscript Opinion of Curtis, J., in The Union Mutual Ins. Co. v. The Commercial Mutual Insurance Co., decided in the Federal court for Massachusetts. That law does not require it to be in writing. It amounts to nothing to say that, by the law merchant, the insurance must be «effected by a written instrument, called a policy; for, (as is well said by Judge Curtis in his opinion above cited,) by the law merchant, a foreign bill of exchange must be in writing; yet there can be no doubt, that an action will lie on an oral promise, for a valuable consideration, to deliver one in payment for mone}^ lent. So a bond must be in writing, and under seal; yet a contract to deliver a bond is not required by the common law to be in writing. So a verbal promise to convey a specified tract of land, is a promise to perform what can only be done by a written instrument; yet such a promise, if made for valuable consideration, was binding under the common law; and-before the statute of frauds, its performance would have been enforced, or its non-performance redressed. — Thompson v. Thompson, 4 B. Monroe, 504; Gilmore v. Shuter, 2 Mod. 310, cited with approbation in Hoffman v. Hoffman, 26 Ala. R. 535; Donaldson’s Adm’r v. Rogers’ Adm’r, 30 Ala. R. 175; Bixley v. The Franklin Ins. Co., 8 Pick. R. 86; Tayloe v. Merch. Fire Ins. Co., 9 How. (U. S.) 405.

Our opinion is, that an oral agreement, upon sufficient consideration, for insurance against loss on goods by fire, between two local points specified in the agreement as the limits or termini of the risk, entered into in this State, between a party having an insurable interest in them and another, is valid. — Hamilton v. Lycoming Mutual Ins. Co., 5 Penn. State R. (by Barr,) 339; Lightbody v. North Am. Ins. Co., 23 Wend. R. 18; 1 Phil, on Ins. 8 to 13; 1 Duer on Ins. 60. The reason given by English judges, why such an agreement is not valid in England, is, that by their stamp act it is unavailable as a contract without a stamp. That reason shows that it ought to be held valid here, where we have no such act. — 1 Arnould on Ins. 49, 50; 1 Phil. on Ins. 11; Mead v. Davidson, 3 Adolph. & Ellis, 303; Marsden v. East, 3 East, 572.

2. We are also of opinion, that an oral agreement, upon ' sufficient consideration, for insurance against loss on goods by fire, and also against loss on thém by perils or risks coming within the provisions of our statute of frauds, between two local points specified in the agreement as the termini of the risk, entered into in this State, between a party having an insurable interest in them and another, is valid so far as it relates to the loss by fire. Such a contract is divisible. A promise to indemnify against loss by fire is separable from a promise to indemnify against loss by the default or miscarriage of another. There is nothing illegal in the consideration, and nothing illegal in any of the promises ; and, therefore, although the promises to indemnify against loss by the default or miscarriage of another may be void, their invalidity does not taint or affect the promise to indemnify against loss by fire. — Chitty on Con. 573, 597; Addison on Con. 147.

3. As such, an agreement is valid, it clearly confers on the party having an insurable interest in the goods a legal right; ahd the legal right derived from it may, after the loss by fire has occurred, be asserted and enforced by an action at law. — See 23 Wend. R. 18, supra; 5 Penn. State Rep. (by Barr,) 339, supra; Tayloe v. Merch. Fire Ins. Co., 9 How. Rep. 405.

4. In declaring on such agreement, it is not necessary to state or enumerate all the perils embraced by the agreement, when the complaint shows that the loss is plainly attributable to only one of those perils, and sufficiently sets forth that peril. — Cotterill v. Cuff, 4 Taunton, 286; 2 Chitty’s Pl. (ed. of 1844,) 179, note (y.)

Upon the principles above stated, we hold, that there was no error in overruling the demurrers to the first, second, and fourth counts of the complaint.

There is nothing in the record, which makes it necessary for us now to decide, whether any of the perils embraced by the agreement of the parties comes within the provisions of our statute of frauds; and we therefore leave that question open. — See Smith on Con. (56 Law Library,) 48; Eastwood v. Kenyon, 11 Adolph. & Ellis, 438; Hargreaves v. Parsons, 13 Mees. & Welsby, 561; Johnson v. Gilbert, 4 Hill (N. Y.) Rep. 178; Draughan v. Bunting, 9 Iredell, 10.

5. Oral evidence, in aid of insufficient written evidence of a contract, is certainly admissible, when the contract is not by any statute required to be in writing. A writing drawn up after a contract is concluded by parol, which is meant merely as a memorandum of the transaction, and which does not amount to a contract, may be given in evidence, concurrently with oral proof of the additional facts and circumstances necessary to constitute a contract and give effect to the transaction. — Addison on Gon. 843, 1071-73; McCotter v. Hooker, 4 Selden’s Rep. 497; Allen v. Pink, 4 Mees. & Welsby, 140; Eden v. Blake, 13 ib. 614; Renter v. Electric Telegraph Co., 6 Ell. & Bl. 341; S. C., American Law Register, for July, 1857, p. 566; Humphrey v. Dale, in the Court of Queen’s Bench, Jan’y, 1857, reported in American Law Register, for July, 1857, p. 551, and in 26 L. J. Rep. 137, Q. B.; Lockhard v. Avery, 8 Ala. 503; Sanders v. Stokes, at January term, 1857, of tbis court; Twidy v. Saunderson, 9 Iredell, 5.

6. Except in matters of science and skill, and some other special cases resting upon peculiar circumstances, the understanding and opinion of a witness is not to be received as evidence. In cases not falling within the exceptions, he cannot be allowed to testify to the import of a word used in a contract. If he could, a party might be rendered accountable for the misunderstanding of the witness, contrary to the legal obligation of the contract; and the right to construe the words of the contract would be taken away from the court and the jury, and conferred upon the witness. — Gibson v. Williams, 4 Wendell, 320; Robinson v. Drummond, 24 Ala. R. 174; Whetstone v. The Bank at Montgomery, 9 ib. 875.

7. “ A contract which the parties intended to make, but did not make, cannot be set up in the place of the one which they did make, but did not intend to make.” 2 Parsons on Con. 9 ; Sanford v. Howard, 29 Ala. R. 684. If the insurance company, by its general agent, made a contract to insure the plaintiff’s cotton to. the city of New Orleans, for a certain specified premium, the contract cannot be impaired or affected by the testimony of the agent, to the effect that he would, as such agent, have charged on additional rate of premium to cover the cotton to the city, if the question had been gout to him at the time the contract was made. Such testimony tends to show what influence the particular question, if it had been put, would have had upon the agent. But it is wholly immaterial in this case, how the agent would have been influenced by the question, which it is conceded on all hands was not put to him. “ Such evidence leads to nothing satisfactory, and ought, on that ground, (if on no other,) to be rejected.” The material inquiry in this case seems to be, not what the agent would have done if a certain question, which was not put, had been put; but what contract, if any, the agent did actually make with the plaintiff. Campbell v. Rickards, 5 Barn. & Ad. 840, and authorities cited supra.

8. The evidence that the plaintiffs were in the grocery and western-produce business, was admissible. — Melhuish v. Collier, 15 Ad. & Ellis, N. S. 878; Rutherford v. McIvor, 21 Ala. R. 750; Watkins v. Gaston, 17 ib. 662; Mobley v. Bilberry, ib. 428; Havis v. Taylor, 13 ib. 324. But a majority of the court think, there was error in allowing the plaintiffs to prove that Rugely, Blair & Co., the persons to whom the plaintiffs had consigned their cotton in New Orleans, had a general policy, which would cover the cotton from the time of its reaching that city.

As that error must work a reversal, we will merely say that it is the only error we find in the record, and proceed to lay down one proposition which may be necessary to guide the court below on another trial. It is this: If the contract was simply for insurance from Mobile to New Orleans by the steamboat Helen, the law applicable to the case in that event is, that the risk commenced when the goods were put on board the boat, and continued until they reached the usual place in New Orleans for delivering them in the course of that trade; unless it is proved that, according to the custom and usage of underwriters and persons concerned in the insurance business at the place where the contract was made, at the time it was made, the word New Orleans, when used in such a contract, was understood to mean, and did mean, the usual place of unloading the boat in the cause of that trade. — See Smith & Holt v. The Mobile Nav. and Mut. Ins. Co., at January term, 1857, and the authorities here cited for appellees. — 1 J. Duer, 185; Parr v. Anderson, 6 East, 207; Mallan v. May, 13 M. & W. 511; see also the notes to Wigglesworth v. Dallison, 1 Smith’s Leading Cases, 677-681; Smith’s Mercantile Law, 325.

Eor the single error above pointed out, the judgment must be reversed, and the cause remanded.