Mackintosh and Dwyer v Marshall
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 1843 |
| Date | 28 January 1843 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 739
EXCH. OF PLEAS.
S. C. 12 L. J. Ex. 337.
mackintosh and dwvek v. marshall. Exch. of Pleas. Jan. 28, 184.3.-The Shipping List at Lloyd's, stating the time of a vessel's sailing, is prima facie evidence against an underwriter as to what it contains, as the underwriter must be presumed to have a knowledge of its contents, from having access to it in the course of his business: but where the insurer, in a letter written for the purpose of effecting the insurance, made a false statement and concealment as to the time of the vessel's sailing, and the underwriter, relying upon that representation, did not in fact look at the list, but acted upon the representation in making the insurance:-Held, that the underwriter was not bound by the contents of the list, so as to render the misrepresentation and concealment by which he was misled immaterial, and that it was the duty of the Judge to have pointed out to the jury that misrepresentation and concealment. [S. C. 12 L. J. Ex. 337.] Assumpsit on a policy of insurance at and from Newfoundland to Liverpool, effected by George Mackay, as agent for the plaintiffs, on a ship called the " Elizabeth," including risk of craft, boats, and lighters of every description, valued at £550, in oil. The defendant pleaded, 1st, non assumpsit; 2ndly, that Maokay was not the agent of the plaintiffs; Srdly, that the plaintiffs were not interested in the oil; 4thly, that the ahip was not lost by the perils of the sea; 5thly, that he subscribed the said policy and made the said promise as in the declaration mentioned, after the said ship or vessel had sailed on the said voyage in the said policy mentioned, and that the Baid subscription and promise were obtained from him, the defendant, by the fraud, falsehood, and misrepresentation of the plaintiffs, to wit, as to and concerning the time of sailing of the said ship or vessel, and the time of sending and dispatching of the order to insure the said oil in the said policy mentioned, and by the fraudulent concealment from the defendant by the plaintiff's of certain facts and information which before and at the time of procuring the said policy and subscription were known to the plaintiffs, and were then material to be known by and ought then to have [117] ibeen communicated to the defendant, to wit, amongst other things, as to and concerning the time of sailing of the said vessel, and as to and concerning the said voyage in the said policy mentioned. The replication took issue on the first four pleas, and to the last replied, that the subscription and promise were not obtained from the defendant by the fraud, falsehood, misrepresentation or fraudulent concealment of the plaintiffs. At the trial before Maule, J., at the last Liverpool Assizes, it appeared that the plaintiffs were merchants, Mackintosh living at Liverpool and Dwyer at St. .John's, Newfoundland, and the defendant was an underwriter at Lloyd's, living in London. It appeared that, on the 27th of January, 1842, Mackay, a broker, went to Lloyd's, where he saw the defendant, and shewed him the following letter, which he had received from the plaintiff Mackintosh. "Liverpool, 2Gth January, 1842. " We have advices from St. John's, Newfoundland, of the 27th ultimo, of train oil being shipped on board the 'Elizabeth,' Spence master, for this port, to the amount of £550-a new vessel, and to sail the end of the month. Will you have the goodness to effect Insurance for the above sum, which we trust will bo done at the lowest rate of the day ?" MACKINTOSH V. MARSHALL 11M.4W.118. The defendant named the premium 30s. per cent., which was the rate for an ordinary rigk, and the slip was signed, but the policy was not signed until the following flay, the 28th of January. The broker and the defendant went into tho room where the shipping lists were kept, arid the broker referred to a St. John's list, which was lying on the table. He said he would not undertake to say that the defendant ever looked at the list, but in that list there was a statement in writing, that it had arrived by the ship " Amelia." The broker said, " I told the defendant the original was on board the ' Elizabeth,1 and the slip was then signed." The broker then stated that on the following day he met the [118] defendant, who said he had heard that the "Elizabeth" had sailed on the 27th of December, and if there were any loss he should require to ascertain the correspondence of the plaintiff, in order to ascertain whether the plaintiff had not correct information of the day the vessel sailed. A witness of the name of Oughterson, a merchant, also stilted that he himself had goods on board the " Elizabeth," and that on the 24th of January he had received a letter from a correspondent at Greenock about the " Elizabeth," and that on the 26th, which was the day that Mackintosh sent instructions to insure, he met Mackintosh on 'Change, and told him he had heard from Greenock, and that he merely said to him, without...
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