Adm’r. v. Adm’r, 7 H. & J. 417 (Md. 1826)

Buchanan, Ch. J.

delivered the opinion of the Court. These " are cross appeals from the judgment of the Baltimore county. Court in a suit originally instituted by Roswell L. olt, administrator of Samuel Newson, against George Douglass, to recover the amount received by him on account of certain insurances effected on the ship Mohawk, and are presented to this court on four bills of exceptions taken at the trial; the three first on the part of the plaintiff below, and the fourth on the part of the defendant.

The two appeals having been discussed together before this eourt, they will be considered as if they were consolidated and formed but one case, and the parties treated as plaintiff and defendant. And the admissibility in evidence of the letters front Archibald Kane to Douglass, which arc introduced into the fourth bill of exceptions, constituting also the subject of the first exception, the first and the fourth exceptions will be examined in connexion.

The admissibility of these letters is resisted for different reasons; first, on the ground that Kane, if living, could not have been received as a witness to sustain the issue on the part of the defendant, by proving that the property in the ship was his, and that he directed the insurance for his own benefit; and that

his declarations, whether oral or in writing, are not competent for the purpose of establishing what he himself could not have been permitted to prove. The answer to which is, that however true, as a general position, it is not applicable to this case.

The letters of Kane were not offered or admitted in evidence as his mere declarations, or with a view of proving property in him at the time the insurances were effected, but for the purpose only, as is stated in the bill of exceptions, of showing by what authority Douglass, the defendant, procured the insurances to be made, and that he acted as the agent of Kane in these transactions, without affecting any question of property or right in Kane to the vessel insured; and it is very clear, that that which is not evidence for one purpose, may be for another, and when offered to prove that for which it is competent, must for that purpose be received.

Kane might, without any insurable interest in the vessel, have caused her to be insured, and have constituted the defendant his agent for that purpose; which fact of agency, unconnected with the question of property or insurable interest, the defendant was competent to prove by the best evidence the nature of the case would admit of; and that best evidence was the correspondence authorising and directing the insurance.

The agency of the defendant was a fact connected with the matter in controversy, hut in no otherwise affecting the plaintiff than as the existence of that fact affected the nature of the transaction which gave birth to the suit, and not as concluding the rights of the plaintiff, or establishing the interest of Kane.

It is not understood as being denied, that the defendant might have been permitted to prove, that in effecting the insurances he acted as the agent of Kane; and how else should that agency have been proved than by the production of the letters themselves by which it was created?

If they were not letters authorising and directing insurance to be effected, but merely reciting or speaking of a pre-existing agency, and depending for their effect on the credit of Kane, the objection would have assumed a different character; but as it is, the first ground of objection cannot be sustained. And looking to the cases of insurance, reported in the books, it will fee found to be the common, the every day practice, to admit

such testimony for the purpose for which it was offered and received in this case. And besides, that it is not opposed to any settled rule of evidence, the very nature of such transactions requires it; it is essential to the great operations of commerce between the different and remote sections of the world, which are, and must to a great extent, be carried on through an epistolary medium.

But it is supposed that the general terms of the policies of insurance of “George Douglass, for account of whom it may concern,” &e. mean any and every body having an interest in the thing insured; and with that understanding of the policies, it is further contended, that these letters, (showing that the insurances were procured under authority derived from Kane,) were inadmissible, as tending to contradict the policies, which on the face of them, are for the benefit of all who may have ány interest in the ship, by showing that they were effected for the benefit of Kane alone. If that were admitted to be the true meaning of the terms of the policy, it would by no means follow that the objection to the admissibility of the letters, arising merely out of that construction, could be sustained.

They were not used for the purpose of proving any interest or property in Kane; but if they had been, and were free from other objections, what was there to exclude evidence of property in him, and that he was the only person concerned in interest in the insurances? The policies being “for account of whom it might concern,” evidence of who was in fact concern-' ed, could not surely be contradictory to the policies. On what principle does the plaintiff seek to recover from the defendant the amount insured, other than that the ship belonged to Samuel Newson, his intestate, at the time of his death, and that the insurances were for the sole benefit of his representatives? And if evidence, that the insurances were obtained for the benefit of Kane, was inadmissible, as being contradictory to the terms of the policies, on what ground could proof be received that they were effected for the benefit of Newson’s representatives?

But “whom it may concern” is a technical phrase, common to policies of insurance, and is understood to mean, not any and every body who may chance to have an interest ip the

thing insured, but such only as are in the contemplation of the contract. Such a policy supposes an agency, and proceeding upon that ground, looks only to the principal in whose behalf, or on whose account, the agent moves in the transaction; and he, for whose benefit the insurance is procured, is the person in the contemplation of the contract — is he, whom it alone concerns.

The inquiry, therefore, in such cases, always is for whose benefit, on whose account, was the insurance obtained, and that not appearing upon the face of the instrument, is a proper subject of extrinsic evidence, which comes in aid of the policy, by pointing out the person to whom it is applicable, the party who is in fact concerned. And this is not confined to policies of insurance; but in the application of every instrument of writing, evidence aliunde is necessarily used to designate the proper subject matter to which it relates. The letters of Kane, therefore, were properly admitted in evidence, for the purpose of showing that the defendant effected the insurances as his agent, and under authority derived from him; which disposes of the first exception, leaving the question of properly in the ship, and the intention of Kane, at the time of directing her to be insured, to the effect and operation of the other evidence in the cause.

It is well settled, that where a policy has not the general clause contained in this, or one of similar import, hone can avail themselves of it but those who are named as the parties insured, or on whose account it is expressed to be made.

But it is equally clear, that a policy in the name of one, with the general clause “for whom it may concern,” will cover and protect the interest of any person for whose benefit it was intended, and who authorised it to be effected. And if in the absence of any express order or authority from the owner, or any previous communication with him upon the subject, such policy is effected in his behalf; the intention at the time of the party «effecting it to cover his particular interest, will so connect him with the policy as that his adoption of it afterwards will cause it to enure to his benefit. The subsequent adoption of a policy by a party interested, and for whose benefit it was in?

tended, being deemed equivalent to his prior order for insurance. On this principle the cases of Routh vs. Thomson, 13 East, 274, and Hagedorn vs. Oliverson, 2 Maule & Selw. 485, were decided.

If then, Newson at the time of his death was the owner of the ship Mohawk, and Kane, when he gave the order for insurance to the defendant, did it with reference to the interest of Newson’s representatives, and intended the insurance for their benefit, the policies, on being adopted by the plaintiff, would enure to his benefit, and Kane, if he had received the amount insured, would have been answerable over to him; and so with the present defendant into whose hands it has come. Or, if the money had not been paid by the underwriters, actions might have been maintained against them on the policies for the present plaintiff, on proper averments in the declaration of his interest, &c. And the circumstance that the policies were effected by the defendant, under the authority of Kane, makes no difference; acting as his sub-agent, they enure in the same manner that they would have done if they had been effected by Kane himself.

The second prayer, therefore, in the fourth exception, was properly rejected, the plaintiff’s right to recover being assumed by the terms of that prayer to depend, not on the intention of Kane at the time of giving the order for insurance, but to rest entirely upon the understanding and intention of the defendant. And if it had been granted, the jury must have given a verdict for the defendant, on being satisfied that he effected the insurances as the agent, and for the benefit of Kane, even though they should have believed, from the evidence in the cause, that Kane himself had in contemplation the interest of Newson’s representatives, and intended the insurance for their benefit.

But if Kane did not give the order for insurance with reference, to the interestof Newson’s representatives, but intended it for his own benefit, and not theirs, then the plaintiff is not entitled to recover. For no one can, by subsequent adoption, avail himself of such a policy, who was not at the time in the contemplation of the party procuring the insurance, and for whose benefit it was not intended, notwithstanding any interest he may have had in the

thing insured. The policy not being effected with reference to his interest, his interest was not insured, and he of course not' concerned in the transaction.

Tn the opinion of this court there is nothing in the first pray»' cr contained in the fourth bill of exceptions.

If the bill of sale from Kane to Newson, under which the plaintiff claims, was in fact fictitious, and intended to defraud the creditors of Kane, it does not lie in the mouth of the defendant, standing in the place of Kane’s representatives, to set" up that fraud in bar of the plaintiff’s recovery, however unclean the hands of Newson may have been.

As to the second exception, it is conceded by the counsel for' the defendant, that there was error in permitting the certificate of Harding to be read to the jury. It is not to be distinguished from any other mere declaration, in writing, of a third person, of the existence of a particular fact, which from its character can only be proved by the testimony of the witness himself on oath; and was clearly inadmissible, and most probably' was admitted by inadvertence.

The question of interest, arising on the third exception, is one of frequent occurrence in the books, and has been found to be a subj’ect not susceptible of the application of any fixed and general rule of law, the dealings between man and man being so various in their nature, that scarcely two cases are to be met with presenting the same aspect, but each depending upon its own peculiar circumstances.

There are indeed eases, not to speak of bonds, &c. in which interest is recoverable as of right. Such as on a contract in writing to pay money on a day certain; as in the case of a bill of exchange or a promissory note, or on a contract for the payment of interest, or where the money claimed has actually been used. But with such exceptions, it has long been the settled practice of the courts of this state, to refer the question of interest entirely to the jury, who may allow it or not in the shape of damages, according to the equity and justice appearing between the parties, on a consideration of all the circumstances §.f the particular case as disclosed at the trial.

The court below, therefore, did right in refusing to give the

direction prayed, and in submitting the question of interest to the jury.

But because the certificate of Harding was suffered to be read in evidence to the jury, as stated in the second bill of exceptions, the judgment of that court must be reversed

Before judgment was entered in either case, the appellant’s attorney dismissed the appeal made by Colt.

Colt’s appeal dismissed.

On the appeal by Douglass.

JUDGMENT APEIRMED,