Slike strani
PDF
ePub

1831.

BUDD

v.

FAIRMANER.

66

Spankie, Serjt., on the same side.-If there had been no warranty added, the words, "a grey four-years old colt," would have been clearly a warranty. The maxim, expressum facit cessare tacitum," applies only where both warranties are of the same matter. But warranties are divisible; and in this case there is a division between the express and the implied warranties. The case of Gray v. Cox (a) is also in point.

TINDAL, C. J.-In this case there is a written instrument to shew the contract. We are to interpret according to the proper construction from the face of the instrument; and it appears to me that the intention was to confine the warranty to the soundness; and that what precedes the warranty is a description or representation only. What a man warrants, he must make good, whether he knew the fact or not. But for what he represents, if there is a latent defect, and he acts bona fide, he is not answerable. In the case of Parkinson v. Lee (b), Mr. Justice Lawrence draws the distinction between a warranty and a representation. In the present case, as it appears to me, the purchaser takes a warranty as to the soundness, and takes the age upon representation. As to the merits, there is different evidence with respect to the meaning of the term "four years old," it being in some cases rising four, and in others four off. I use this fact for the purpose of shew

(a) 6 D. & R 200; 4 B. & C. 108; and 1 C. & P. 184. "If an article is sold for a particular purpose, and at the usual market price, and it turns out to be defective, an action is maintainable against the seller, though there was no warranty at the time of the sale." But see the observations there, as to the form of such action.

(b) 2 East, 314. That case decides, that upon a sale of hops by the sample, with a warranty that

the bulk of the commodity answered the sample, the law does not raise an implied warranty that the commodity should be merchantable, though a fair merchantable price were given; and, therefore, if there be a latent defect unknown to the seller, arising from the fraud of the grower of whom he purchased, such seller is not answerable, though the hops turn out to be unmerchantable.

ing that the terms may have a varying construction; and, therefore, one part may be warranted, and the other not. The case of Browning v. Wright (a) shews the limitation of an express warranty. Shepherd v. Kain was decided on the ground that there was not any express warranty. Richardson v. Brown, and Dickinson v. Gapp, are directly in point. I am of opinion that the rule must be discharged.

GASELEE, J., Concurred.

BOSANQUET, J.-We must construe this instrument according to the intention of the parties. Where a party sells by a sale note, he must sell such an article as the sale note expresses. So, in a policy, the introduction in the margin of the word "American," or "neutral," may mean that it is intended to warrant those facts. What is the instrument in question? It is not a sale note, but a receipt given upon a sale. Can we infer from the terms used in the commencement of the receipt that there is a warranty as to the age? It seems to me, that Richardson v. Brown and Dickinson v. Gapp are decisive on this point.

ALDERSON, J.-As at present advised, if the word warranted had been the last word, I should have held that But here, I think it is confined

it extended to the whole.

to the soundness only.

(a) 2 Bos. & Pul. 13.

(b) See, in addition to the cases cited in the argument, Geddes v.

Rule discharged (b).

Pennington, 5 Dow, 164, and those
collected in Harrison's Index, Vol.
2, pp. 422 to 425.

1831.

BUDD

V.

FAIRMANER.

1831.

BEFORE MR, JUSTICE BOSANQUET.

(Who sat for the Lord Chief Justice.)

July 4th.
It is not neces-

sary to defeat

an action on a policy of insurance on a ship, on the ground of concealment of

material facts,

fraud that

should be made

out; but it is enough, if the information be withheld, although the party withholding may only have erred in judgment.

ELTON V. LARKINS.

THIS
was an action on a policy of insurance of the
ship Fanny, on a voyage from Cadiz to London, with li-
berty to touch at Exmouth.

From the evidence given at first, on the part of the plaintiff, it appeared that the insurance was effected on the 29th of December, 1828, though the date of the policy was in January, 1829. The plaintiff's son swore, that his father, on the 29th December, told the broker, that the ship was to sail on the 23rd of November, and asked him if he had done anything as to the insurance; that the broker said, there was no risk in it-that he would take it himself for ten guineas, and that he could that the assured get it done at from 25s. to 30s. The same broker was concerned in freighting the vessel on an intended voyit be such as to age from London to St. Michael's, after she should remake the ship a turn from Cadiz.

In general, it

is not necessary,

should commu

nicate the time

of sailing, yet, if

missing ship,

then it becomes

a material fact,

and should be

A waiter from the reading-room at Lloyd's proved that lists, containing accounts of the sailing, &c., of vessels communicated. from foreign ports, came by the post, and were filed, which lists the underwriters were in the habit of looking

Whether un

derwriters at

Lloyd's must

all circum

stances, with

reference to in

be taken, under at; and, that the defendant attended in the reading-room most days. A list was put in, which arrived at Lloyd's, from Cadiz, on the 22nd of December, it contained an account of the sailing of the Fanny from that place, on the 25th of November. A witness was also called, who stated that a vessel varied in coming from Cadiz to Lon

surances, to be

cognizant of the

contents of the foreign lists filed in the read

ing room there -Quære.

don from twenty to fifty days, and that the time was always very uncertain.

Spankie, Serjt., for the defendant.—The plaintiff, the owner of the ship, was in possession of important information, which, if the underwriter had also been possessed of, he would either have declined the insurance altogether, or have undertaken it at an increased rate. The plaintiff did not communicate this to the underwriter, and therefore he cannot recover on the policy. The law clearly is, that the effect of not communicating information, does not depend upon whether the party in possession of it considered it important or not, but whether it turns out to be so in the opinion of a Jury. This was decided in the case of a life policy in Von Lindenau v. Desborough (a). The plaintiff had received a letter from his captain, containing important information as to a vessel called the Traveller, which sailed from Cadiz on the 22nd of No-vember, and was driven into Kinsale, in Ireland, in great distress. On the part of the plaintiff, reliance is placed upon the fact, that there are lists at Lloyd's which may be referred to. But is it to be argued, that an underwriter can be expected to look at these lists with reference to vessels with which he has no connection, and in the fate of which he has no interest; especially when it may be in a language which perhaps he does not understand?—at all events, the circumstance of there being such lists is not sufficient to excuse the plaintiff, who had the information in his pocket, from communicating it to the broker. The letter of the captain contains these words-"I have now to inform you, that the last boat from & Son is now alongside, which completes the cargo; and I am in great hopes to sail from here to-morrow, or Sunday morning, the 23rd. One vessel sails to-morrow direct for

(a) Vol. 3 of these Reports, 353. That case, inter alia, decides, that if the assured, at the time of effecting the policy, conceals anything, which it is material for the insurer to know, the

policy is void; and it makes no
difference whether the assured
considered it material or not; and
what amounts to a misrepresen-
tation or to a material conceal-
ment, is a question for the Jury.

1831.

ELTON

บ.

LARKINS

1831.

ELTON

V.

LARKINS.

London, the schooner Traveller having been detained thirty days." Now, this, I submit, was a most material letter to be communicated; and if it had been communicated on the 29th of December, the broker would have known when the ship was expected to sail, and he would have known also when the Traveller sailed, and might have found out that she was in distress. The Fanny was, in fact, a missing ship, and out of time on the 29th of December, when the policy was effected. The plaintiff wished to be his own insurer, and to take the risk, and he did it as long as he could. If the time of sailing had been communicated by shewing the letter, it would immediately have appeared to any intelligent underwriter, that the ship was out of time. The case of a fifty-days passage is an extreme case, which does not enter into averages; the witness who proved it, admitted that thirty days was the average time, and reckoning from the 23rd of November, the day mentioned in the letter, it would have been more than thirty days. The vessel also was to touch at Exmouth, and her arrival there would be six days earlier than her arrival in London, and would be known in London by the post.

On the part of the defendant, several underwriters were called; and from their evidence it appeared, that it was not the practice at Lloyd's to consult the foreign lists, unless some particular circumstance rendered it desirable; and that, with reference to the ship in question, if they had been told the day at which she was expected to sail, they would have inspected the lists, but not otherwise.

It was also proved, that a vessel called the William sailed from Cadiz on the 30th of November, and arrived in London on the 16th of December; that the Traveller sailed from Cadiz on the 21st of November, and was towed dismasted, by a steam-boat, into Kinsale, in Ireland, on the 20th of December. The underwriters who

« PrejšnjaNaprej »