Warren v. Franklin Insurance , 104 Mass. 518 ( 1870 )

Chapman, C. J.

The rule of damages, which may be regarded as established in the United States, is the market value of the goods with certain costs and charges at the beginning of the risk, 2 Phil. Ins. §§ 1222, 1229. Coffin v. Newburyport Insurance Co. 9 Mass. 436. Le Roy v. United States Insurance Co. 7 Johns. 343. Carson v. Marine Insurance Co. 2 Wash. C. C. 468. Cox v. Insurance Co. 3 Rich. 331. In 1 Arnould on Ins. § 131, cited by the defendants’ counsel, it is said that the rule in England is the invoice price, but it is admitted that the American rule is the true rule in theory. But in the third English edition by Maelachlan, p. 291, it is stated as the English rule that “ the worth of the thing insured to its owner at the outset of the risk, with the expenses of the insurance, is, in all open policies, its estimated value for the purposes of insurance.” In many cases, the invoice price would be the market value, but in many other cases i* would not.

This being the rule of law as to damages, the custom of a particular port could not vary it. Dickinson v. Gay, 7 Allen, 29.

The contract being payable in gold, the judgment must be rendered for gold coin specifically. Bronson v. Rodes, 7 Walace, 229. Butler v. Horwitz, Ib. 258. Independent Insurance Co. v. Thomas, ante, 192. The pound sterling is to be estimated in our coin at $4.84. Commonwealth v. Haupt, 10 Allen, 38.

It is admitted that the notes annexed to the defendants’ answer, and declaration in set-off, cannot be made the subjects of a technical set-off. But each of the policies stipulates that in case of loss “ all sums due to the company from the insured when such loss becomes due being first deducted, and all sums corning due being first paid or secured to the satisfaction of the president and directors, they discounting interest for anticipating payment,” the loss shall be paid within Sixty days after notice, proofs and adjustment of loss. The notes were not due when the action was commenced, but became due a few months afterwards. They are payable in currency, and, after finding their value in gold when they became due, that amount should be deducted from the plaintiffs’ claim. If the parties cannot agree upon this amount, it must be ascertained by an assessor. The balance will be due to the plaintiffs with interest.

Judgment accordingly.