The Same v Bateman
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 964
COURT OF KING'S BENCH
[200] 39. goram v. sweeting, the same v. fowke, and the same v. bateman. Mich. 22 Car. II. Regis, Rot. 367. London, to wit.-Be it remembered that heretofore, to wit, in the term of the Holy Trinity last past, before our lord the King at Westminster came Francis Goram by Andrew Viduan his attorney, and brought here into the Court of our said lord the King then there his certain bill against John Sweeting, in the custody of the marshal, &c. of a plea of trespass on the case, and there are pledges of prosecution, to wit, John Doe and Eichard Roe, which said bill follows in these words, to wit: London, to wit, Francis Goram complains of John Sweeting, being in the custody of the marshal of the Marsbalsea of our lord the King before the King himself, for that whereas the aaid Francis, on the 21st day of April in the year of our Lord 1669, at London aforesaid, to wit, in the parish of St. Mary le Bow in the ward of Cheap, according to the custom of merchants caused to be written and made a certain writing, commonly called a policy of insurance,(l) in which said writing it was mentioned that the said (1) Which is, when a merchant gives a consideration in money, by way of premium, to others, to assure his ship or goods, from one port or place, to some other port or places, on such terms as they can agree upon ; and if the ship or goods, &c. perish, or are lost, in the whole, or in part, every subscriber ia to make a recompense either to the extent of his subscription, or pro rata, in proportion thereto; whereby (to use the language of the statute 43 Eliz. c. 12) "on the loss or perishing of any ship, there followeth not the undoing of any man, but the loss lighteth rather easily upon many, than heavily upon few." A policy of insurance is considered as a contract uberrimce fidei, and always receives a liberal construction, for the benefit of trade, and of the assured. 1 Burr. 349, Petty v. Royal Exchange Assurance. 1 Bos. & Pull. 322, Wolff v. Horncasth. Skinn. 55, Raines v. Knightly. And it is held, that what is usually done by such a ship, with such a cargo, in such a voyage, is understood to he referred to by every policy, and to make a part of it, as much as if it was-expressed therein ; 1 Burr. 350 ; and that whoever subscribes or underwrites a policy, is bound to know the nature and peculiar circumstances of that branch of trade to-which the policy relates, and that whether it is recently established or not. Doug. 510, Noble v. Kennoimy, 3d edit. 3 Burr. 1712, Salvador v. Hopkins.(a) If there ha been a mistake in a policy, it may be altered by consent even after a loss has-happened; as where a broker had instructions to insure goods on the ship A., where B. was commander, and the policy by mistake of the person who effected it, was on the ship C. where D. was commander, it was held that the mistake might be set right (a) See also 1 Camp. 503, Vallance, v. Dewar. Ibid. 505 n. Ougier v. Jenyns. Ibid. 508 n. Kingston v. Knibbs. 3 Camp. 200, Moxon v. Atkins. 1 Taunt. 463, Grant v. Paxton. Selwyn, N. P. 963. [See also Peake, 43, Chaurand v. Angerstein. But the usage must be general, in order to bind the insurer : therefore a usage at Lloyd's will not bind him, unless he be in the habit of effecting policies there. 3 B. & C. 793, Gabayv. Lloyd. 5 D. & R. 641, S. C. 10 B. & C. 760, Bartlett v. Pentland. 1 B. & Ad. 605, Scott v. Irving. 4 M. & W. 211, Stewart v. Aberdein. See 11 M. & W. 116, Mackintosh v. Marshall. 8 M. & W. 160, Stewart v. Cauty. Again, though a usage may be admissible to explain what is ambiguous in the policy, it is never admissible to contradict what is plain. Therefore, in an action on a policy, in the usual form, on ship, boat, &c. evidence of usage that the underwriters never pay for loss of boats on the outside of the ship, slung upon the quarters, was held inadmissible. 2 Cr. & J. 244, Slackett v. Rmjal Exchange Assurance Company. 2 Tyrw. 275, S. C. See 3 Q. B. 120, Milwrd v. Hibbert. 2 G. & D. 142, S. C.] 2 WMS. SADND. WO. MICH. 22 CAR. II. EEGIS 965 Francis Goram did make an assurance, and cause himself to be assured, lost (2) m -not at the trial, by the evidence of the person in whom the mistake originated. 2 Salk. 444, Bates v. Gfrabbam. 1 Atk. 545, Motteux v. London Assurance Company.(b) It is essential that, in all contracts of insurance, the greatest good faith should be (b) The stat. 35 G. 3, 63, s. 13 (Stamp Act) provides, "that the Act shall not extend to prohibit the making any alteration which may lawfully be made in the terms or conditions of any policy of insurance, duly stamped, after the same shall have been underwritten, or to require any additional stamp duty, by reason of such alteration, so that such alteration be made before notice of the determination of the risk originally insured, i&c., and so that the thing insured shall remain the property of the same persons; and so that such alteration shall not prolong the term insured beyond the period allowed by this Act; and so that no additional or further sum shall be insured by means of such alteration." From which it appears, that if the case put above were to happen at this day, the policy would be at all events vitiated, unless a new stamp were procured. For the decisions on this section of the statute, as to what alterations are within the saving of the Act, so as not to require a fresh stamp, see 8 East, 373, Hill v. Patten. Ibid. 273, Kensington v. Inglis (in error). 4 Taunt. 169, Hubbard v. Jackson. 1 M. & S. 217, Robinson v. Touray. 4 Camp. 107, Ridndale v. Sheddm. 5 Taunt. 359, Sawtell v. London. 1 Marsh, 99, S. C. 1 Stark. 336, Robinson v. Tobin. 5 M. & S. 267, Ramstrom v. Bell. 2 B. & A. 320, Weir v. Aberdeen. [1 B. & Ad. 81, Brockelbank v. Su-gnte.] But, independently of the stamp, a material alteration, made without the consent of the underwriter, who is defendant, (although others who signed may have assented) vitiates the policy. As to what is considered such a material alteration, see 4 Taunt. 329, Lane/horn v. Cologhan. 1 Taunt. 416, Fairlie v. Cltristie. 2 Stark. 64, Campbell v. Christie. 3 Brod. & B. 168, Forshaw v. Chabert. And even if the alteration were by consent of both parties, but the policy void for want of a fresh stamp, the assured cannot recover upon the policy in its original state. 9 East, 351, French v. Patten. But if some of the underwriters consent and others do not, the policy, it seems, remains good, as against the latter. Holt. N. P. 331, Fairlie v. Christie, coram Gibbs C.J. However an immaterial alteration will not vitiate the policy, though made without or even against the consent of the underwriter. 4 Moore, 5, Sanderson v. M'Cullum. Ibid. 42, Sanderson v. Symonds. 1 B. & B. 426, S. C. The like law holds with respect to bills of exchange and other instruments: an alteration may be made in correction of a mistake, and in furtherance of the original intention of the parties; 3 Esp. 246, Kershaw v. Cox. [6 M. & S. 142, Jacobs v. Hart. 11 A. & E. 31, Byrmn v. Thompson. 3 P. & D. 71, S. C. Ry. & Moo. 37, Brutt v. Picard. 2 M. & Gr. 890, Cariss v. Tattersall. 3 Scott, N. R. 257, S. C.]; or by consent of all parties before the instrument is binding on them ; as, for instance, an accommodation bill may be altered by eotisent of all before it is negotiated, for in fact it is no bill till negotiated. 5 B. & A. 674, Do-tunes v. Richardson. [2 Stark. 313, Johnson v. Diike of Marlhorough. 1 Dowl. N. S. 802, Wright v. Inshaw. The doctrine in Pigofs case (11 Rep. 27), that a material alteration in a deed, whether made by a party w a stranger, is fatal to its validity, has been extended, not only to bills and notes, but to all written instruments constituting the evidence of contracts. 4 T. R. 320, Master v. Miller. 2 H. Bl. 140. 15 East, 29, Powell v. Divett. 11 M. & W. 778, Davidson v. Cooper, affirmed in Cam. Scacc. July, 1844. But with respect to policies of insurance, though the doctrine has been applied, its operation, it may be said, has been eluded, by considering a policy as a peculiar instrument, embracing several contracts with different individuals (see supra). 11 M. & W. 802. -It must be observed, that where rights are vested by the execution of an instrument, its subsequent alteration, or even destruction, does not devest them. 4 B. & A. 677, Doe v. Bingham, per Holroyd J. .See also 3 Stark. 60, 61, Doe v. Hirst. Thus where an alteration is made in a covenant in a deed by which an estate has been conveyed, the right thereto will not be defeated; but no action can be maintained on the covenant. 11 M. & W. 794, per Parke B. Ibid. 800. If an instrument bears the appearance of having been altered, it lies on the party who seeks to enforce it to prove the circumstances under which the alteration took 966 GORAM V. SWEETING, ETC. 2 WMS. SAUND. 200. lost, from London to any porta and places out of the Streights of Gibraltar, at, to, and observed by the assurer and the assured towards each other; for fraud, or a concealment, or misrepresentation, of any material circumstance, makes the whole contract void. As if the assurer insures a ship on her voyage, which he privately knows to be arrived ; the policy is void, and the assured may bring an action against him to recover back the premium. 3 Burr. 1909, Carter v. Boehm. So if the assured conceals any material fact which relates to the ship or goods insured, the policy is void, and the assurer not liable; 1 Black. Rep. 593, Carter v. Boehm. 3 Burr. 1905, S. C. 7 T. R. 162, Middlnuoud v. Blokes, S. P.; though the concealment is not made with a fraudulent intention, but arises from the mistake or negligence of the assured, or his agent. 1 Black. Rep. 593, Carter v. Boehm. 1 Bos. & Pull. N. R. 14, Willes v. Gimer. But see 4 East, 590, Haywood v. Rodgers. And 7 East, 457, Freeland v. Glover. 1 Bos. & Pull. N. R. 151, Littledale v. I ixon.(c) Indeed the concealment of...
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