Stewart and Others v Aberdein
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1838 |
| Date | 01 January 1838 |
| Court | Exchequer |
English Reports Citation: 150 E.R. 1406
EXCH. OF PLEAS.
S. C. 1 H. & H. 284; 7 L. J. Ex. 292. Referred to, Puttison v. Guardians of Belford Union, 1856, 1 H. & N. 524; Catterall v. Hindle, 1867, L. R. 2 C. P. 370; Elgood v. Harris, [1866] 2 Q. B. 495.
[211] stewart and others v. aberdeen. Exch. of Pleas. 18.'!8,-In an action on a policy of insurance on ship, effected by I). & Co., brokers in London, as agents for the plaintiff's, who were merchants in Liverpool, the defendant pleaded, that after the loss had accrued, D. & Co., by and with the authority and assent of the plaintiff's, settled and adjusted with the defendant the amount of the loss, according to the usage and custom of merchants in that behalf, at 971. per cent., of which the plaintiff's had notice, and assented to and acquiesced in the said adjustment; that 1). and Co., at the time of the payment and satisfaction of the loss as after mentioned, were indebted to the defendant in an amount exceeding the said sum of 971.; and thereupon the defendant, by and with the privity, knowledge, and consent of the plaintiff's, paid and satisfied the said sum of 971., by giving credit to D. & Co. for that amount in their account with him ; and the defendant then wholly discharged L). fe Co. from all claims in respect of that sum in his said account with them ; which payment and satisfaction L). & Co. had full authority from the plaintiffs to accept from the defendant on their behalf, as and for payment and satisfaction by the defendant; and the plaintiff's then accepted such settlement and payment in full satisfaction and discharge of the cause of action as to the said sum of 971. -ft appeared in evidence that the plaintiffs had for several years effected insurances in London through L). & Co., and had had general and insurance accounts current with them. The policy in question was effected in September 1835; the loss appeared on Lloyd's books in May 1836. D. & Co. were then indebted to the defendant to the amount of 2171. on their underwriting account of the previous year. In June IS.'SG, they agreed this account with the defendant, and paid him 1001., leaving the remainder on the account to meet the loss in question. In September, it was adjusted by the defendant and all the other underwriters, except two, at 971. per cent. A memorandum was written on the policy, stating the loss to be payable in one month, and the defendant's subscription was struck through ; and the loss was then passed into the accounts between D. & Co. and the defendant. In November, the loss being then about to be adjusted by the other two underwriters, D. & Co. advised the plaintiff's thereof, and the plaintiffs drew bills on them for the amount of the loss. On the 19th November, D. & Co. inclosed them a credit note of the settlement of the whole loss, and carried the amount of it to the credit of their insurance account with the plaintiffs, (if which they sent them an extract; and they debited the plaintiffs with premiums to the end of September, leaving 4BL &W.212. STEWART V. ABEKDE1N 1407 a balance due to the plaintiff's, which they transferred to the credit of the general account. At the foot of the credit note was written, " Above is the credit note of the loss per ' Wow Elizabeth/ 11551. Ms. 10d., hut without our prejudice until in cash from the underwriters." The usage at Lloyd's wan proved by several insurance brokers to lie to settle losses, as between the broker and the underwriter, in the manner above stated, and some of them stated that the usage was well known in Liverpool: -Held, that there was sufficient evidence of a custom between the brokers and underwriters to make settlements in accounts by taking credits us payments, and of such a settlement having been made in the present case, and also of the plaintiff's having authorized the brokers to make such settlement, as in substance to prove the plea, and to discharge the underwriters.- Held, also, that the memorandum at the foot of the credit note did not necessarily import that the brokers were to receive payment in cash from the underwriters. [S. C. 1 H. & H. 284 ; 7 L. J. Ex. 292. Referred to, PaUintm v. Guardians of lielford Union, I85G, 1 H. & N. 524; OuUemll v. Iliiutle, 1867, L. tt. 2 0. 1 . :!70; Elgood v. Harris, [lt 66| 2 Q. B. 495.] This was an action on a policy of insurance, effected on the '' Wow Elizabeth," at and from Liverpool to Narva, and from thence to Uantzig, by Messrs. Douglas, Anderson, & Co., of London, as agents of the p aintiff's, Messrs. Stewart, Bald, & Co., merchants of Liverpool. The defendant pleaded, 1st, as to the sum of 971. 1 Is. 8d., parcel of the sum of 1001. in the first count of the declaration mentioned, that after the cause of action in the said first count mentioned, with respect to that sum, had accrued, and before the commencement of this suit, to wit [212] on the 20th of September, 18; G, the said persons using the name, style, or firm of Douglas, Anderson, & Co., the said agents for the plaintiffs in the said first count mentioned, by and with the authority and assent of the plaintiffs, settled and adjusted with the defendant the amount of the loss on the policy of insurance in the said first count mentioned, and thereupon the amount of such loss was then settled and adjusted, according to the usage and custom of merchants in that behalf, at a certain sum, to wit, the sum of 971. 11s. 8d., in respect of the said Bum of 1001. so underwritten by the defendant, on the said policy in the said first count mentioned, of which the plaintiffs then had notice, and then assented to and acquiesced in the said adjustment. And the defendant further says, that the said .Messrs. Douglas, Anderson, & Co., before and at the time of the payment and satisfaction of the said loss so adjusted by the defendant, as hereinafter mentioned, were indebted to the defendant in divers large sums of money, exceeding in the whole the said sum of 971. lls. 8d., parcel &c. And thereupon, and before the commencement of this suit, to wit, on the May and year last aforesaid, the defendant, by and with the iprivity, knowledge, and consent of the plaintiff's, paid and satisfied the said sum of 971. 1 Is. 8d. parcel *fcc., by giving credit to the said Messrs. Oouglas, Anderson, & Co. for the said sum of 971. lls. Sd., in their said account with the defendant; and the defendant then wholly discharged the last-mentioned persons from all claims in respect of such last-mentioned sum of money, in this said account with them ; and which said payment and satisfaction the said last-mentioned persons had full authority from the plaintiffs to accept and receive from the defendant on their behalf, as and for payment and satisfaction by the defendant of the said sum of 971. lls. 8d. parcel &c. ; and the plaintiffs then accepted such settlement and payment by the defendant as aforesaid, in full satisfaction and discharge of the said [213] cau.se of action, as to the said sum of 971. lla. 8d., parcel &c. And as to the residue of the said sum of 1001. in the first count mentioned, the defendant says, that no loss was sustained in respect of the subject-matter of insurance in the said policy in the said first count mentioned, i beyond the said sum of 971. lls 8d., parcel &c. so paid and satisfied as aforesaid. And this thedefendant is ready to verify, &c. Second plea, as to the said sum of 971. lls. 8d., parcel &c., that long before the said policy of insurance in the first count mentioned and effected, and from thence until and! at the time of the adjustment and payment hereinafter mentioned of the said loss in the said first count mentioned, the said Messrs. Douglas...
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