Miller v. De Peyster , 2 Cai. Cas. 301 ( 1805 )

Per Ouriam.

The composition made by the agent, appointed by Graham, the master of the vessel, and part owner of the cargo, was done in good faith, after a capture and abandonment. It was made for a benefit of the insurer, to whom the person intrusted with the management of the business must be considered as the agent. It was a discretion within the scope of his authority. A discretion which, if prudently exercised, would often be for the benefit of the underwriters, but which would never be used if at the hazard of turning a total into a partial loss. Had the balance, after payment *of the composition money and charges, been received by Graham himself, it might have been a proper case for deduction. But the money is still in the hands of the foreign agent. He may fail, and the assured ought not to run that risk. It is to the person in whose hands the money is that the insurer must look. Judgment must, therefore, be for the plaintiffs, ^(a)

Judgment for a total loss.

(a) See Abbott v. Broome, 1 Caines' Rep. 303, n. (a.)