ber 7th, through Henry L. Chamberlain, of Buffalo, the agent of the defendant in its transportation business, and also the agent of Capt. Ward in his insurance business. The succeeding shipments were made October 12th, October 15th, October 19th, and November 3d. These shipments were all consigned to C. E. Bailey, engineer of the Eastern Minnesota Railroad, Superior, Wis., and all arrived in safety. Upon making such shipments in each case, Chamberlain made out a certificate of insurance, in the form hereto annexed, upon blanks signed by Ward as agent of the British-America Insurance ComThese certificates were sent by him to pany, under the policy above named. O'Shea, agent of the New York, Lake Erie & Western Railroad at Buffalo, These certificates were retained from whom the consignments were received.

by O'Shea, and were never sent to the plaintiff or to Hammond.

(6) On November 8, 1886, a shipment was made upon the propeller Northerner of 357 tons of steel rails. The annexed certificate was issued by Chamberlain upon the blank furnished by Ward for $11,797, and sent to O'Shea. This was at the rate of $33.33 per ton, the value of the iron being $38. certificate was retained by O'Shea until July, 1887, when it was delivered to the agent of the plaintiff.

This

(7) In the course of the voyage through Lake Erie, and about November 12th, the Northerner took fire, burned to the water's edge, and sank. Her cargo was subsequently raised and delivered. Of the entire 357 tons, 20 tons were Their value, at $38 per ton, was $760. The reworthless, and a total loss. maining 337 tons were sold, at $25 per ton, to the Northern Pacific Railroad, and this was their value. Consequently upon this portion of the shipment

hereto, without right to claim contribution from such subsequent insurers, and shall accordingly be entitled to retain the premium by them received, in the same manner as if no subsequent insurance had been made. And, in case of loss or damage to the property hereby insured, this company, its agent or representative at or nearest the first port of discharge, shall have prompt notice of same, and shall have every opportunity and facility for ascertaining the cause, extent, and amount of damage, by personal inspection, appraisal, or sale of the damaged property.

It is also agreed that the property be warranted by the insured free from any charge, It is damage, or loss which may arise in consequence of a seizure or detention for or on account of any illicit or prohibited trade, or any trade in articles contraband of war. furthermore hereby expressly provided that no suit or action against this company, for the recovery of any claim for loss or damage, upon, under, or by virtue of this policy, shall be sustained in any court of law or equity, unless such suit shall be commenced within the term of twelve months next after the loss or damage shall occur; and in case any such suit or action shall be commenced, after the expiration of twelve months next after such loss or damage shall have occurred, the lapse of time shall be taken and deemed as conclusive evidence and conclusive defense against the validity of the claim thereby so attempted to be enforced.

It is also agreed and understood that, in case of loss or damage under this policy, the assured, in claiming and accepting payment therefor, hereby, and by that act, assigns and transfers all his or their right to claim for such loss or damage, as against the carrier, or other person or persons, town or corporation, or the United States or foreign governments, to this company, and to prosecute therefor at the charge and for account of this company, if requested; to inure to their benefit, however, to the extent only of the amount the loss or damage and attendant expenses of recovery, paid or incurred by the said British-America Assurance Company; and any act of the insured, waiving or transferring, or tending to defeat or decrease, any such claim against the carrier, or such other person or persons, town or corporation, or United States or foreign governments, whether before or after the insurance was made under this policy, shall be a cancellation of the liability of this company, for or on account of the risk insured for which loss is claimed.

And it is understood and agreed that this company or its agent shall have free access, at all reasonable hours, to the books, accounts, instructions, and correspondence of the assured, containing statements of, or which relate to, shipments and receipts covered by this policy; and this policy may be declared void by either party, on giving a written notice to that effect to the other party, but without prejudice to any shipment or liability made or incurred, prior to the service of such notice."

Deck Cargoes. It is understood that property covered by this policy on lake vessels shall be under deck, unless otherwise specified and charged for additionally in the in

there was a loss of $13 per ton, or $4,388.50. Plaintiff has thereby, suffered damages in the amount of $5.148.50.

The following is the certificate referred to in findings 5 and 6:

Chicago, Ill.

INLAND MARINE DEPART-
MENT.

C. W. Elphicke & Co.

No. 5,762.

Lake Cargo.

$11.797. BRITISH-AMERICA ASSURANCE COMPANY, TORONTO. BUFFALO, Nov. 8, 1886.

This certifies that Eber Ward, manager, is insured under and subject to conditions of lake-cargo policy No., in the sum of eleven thousand seven hundred and ninety-seven dollars on three hundred fifty-seven and one-half tons steel rails, shipped on board of propeller Northerner, $11,797, at and from Buffalo to Superior, Wis. Loss, if any, payable to assured or order on return of this certificate. This certificate is not valid unless countersigned by the authorized agent of the company at place of issue. C. W. ELPHICKE & Co., General Agents.

J. J. HIGMAN, Marine Manager.
EBER WARD, Agent.

James C. Smith and John H. Bissell, for plaintiff..
Dwight C. Rexford, for defendant.

BROWN, J. The first count in the declaration charges the defendant transportation company with having agreed to carry and to insure. The

dorsement thereon, and deck cargoes are insured against total loss of packages only. The minimum rates of such loss to make a claim shall be ten per cent., except salt, which shall be twenty per cent. of the whole number of packages insured on deck, and in all cases, on deck risks, to be free from damage by wet, breakage, leakage, or exposure.

Warranted by the insured free from any claim for loss or damage arising from civil commotion, seizure, detention, or the consequences of any hostile act of the United States or foreign governments; also from any loss or damage from piracy or letter of marque, or the acts of any government hostile to the United States.

Warranted by the insured free from any damage or injury, from dampness or frost, heating, sweating, steaming, change of flavor, or being spotted, discolored, musty, or mouldy, except caused by actual water contact with the article damaged, and to be free from liability for leakage, on molasses or other liquids, or breakage of articles liable to break from their own nature, unless occasioned by the perils insured against. If the voyage aforesaid shall have been begun, and shall have terminated, before the date of this policy, then there shall be no return of premium on account of such termination. No shipments to be considered as insured until approved and indorsed on book attached hereto, by Eber Ward, Ag't, the agent of this company at Detroit, Mich.

This policy is subject to the usages and regulations of the port of New York in all matters of adjustment and settlement of losses and averages not herein otherwise clearly specified and provided for, as may be stated by a competent and disinterested adjuster of marine losses, to be designated by the insurers; but no damage to be paid unless amounting to five per cent.

It is understood and agreed, as one of the conditions under which this policy is issued and indorsement made thereon, that, if the insurance is procured by any person or persons other than the assured, they shall be deemed the agent or agents of the assured, and not of this company, in any and all transactions relating to this insurance.

And it is hereby understood and agreed, by and between this company and the assured, that this policy is made and accepted in reference to the foregoing terms and conditions, which are hereby declared to be a part of this contract, and are to be used and resorted to in order to determine the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for in writing.

In witness whereof the British-America Assurance company have caused these presents to be attested by their manager at Toronto. But this policy shall not be valid unless countersigned by C. W. Elphicke & Co., general agents of the British-America Assurance Company at Chicago, Ill.

Attested:

J. J. HIGMAN, Marine Manager.

Countersigned at Chicago this 12th day of May, 1886.

C. W. ELPHICKE & Co., General Agents.

second count differs from the first only in its averment of agreement to carry and to procure insurance to the full value of the rails. The agreement was an oral one between Hammond, agent of the Erie road, at New York, and Ward, the manager of the defendant line. While the conversation is somewhat differently stated by the two witnesses, I am satisfied, and have found as a fact, that Ward agreed to carry the rails, and to insure them, at two dollars per ton. The meaning of those words, then, becomes a question of construction for the court. Did Ward thereby intend that the defendant transportation company should insure these personally, or was it the intention that he, acting as agent for this line, should procure them to be insured in some responsible company? The authorities recognize a clear distinction between a contract of insurance and a contract to insure, in the fact that the former is executed and the other is executory. In the one case the action is upon the contract for the loss or damage sustained under the risk, while in the other the action is for a breach of the contract for not insuring, and the measure of recovery is the loss sustained thereby. The weight of authority is that a parol contract to insure will be enforced in equity even though the charter of the company requires its contracts of insurance to be in writing; the courts holding to a distinction between an executory and executed contract, and that the charter provisions can only be held to apply to the latter. This was the construction given by the supreme court of the United States to a statute of Massachusetts in Insurance Co. v. Insurance Co., 19 How. 318. See, also, Insurance Co. v. Shaw, 94 U. S. 574; Sanborn v. Insurance Co., 16 Gray, 448; First Baptist Church v. Insurance Co., 19 N. Y. 305; Wood, Ins. § 11; May, Ins. § 23. Most of the cases in which the distinction is taken have arisen in actions against fire insurance companies for failing to issue policies in which the measure of damages is the same as if a policy had been issued. In such cases the courts would naturally interpret the contract to insure as a contract to issue a policy in the defendant company; but, where the promise is made by a person or corporation whose business is not to insure, the authorities indicate that it is satisfied by the promisor's procuring a policy in some responsible company to the value of the property insured. There is no doubt that when a factor receives goods on commission, with instructions to insure, he satisfies those instructions by procuring policies in a responsible company. Mechem, Ag. §§ 510, 1011. And it is difficult to see why a different construction should be given to the receipt of goods under an agreement to insure. Thus, in Johnson v. Campbell, 120 Mass. 449, it was held that a letter issued by a firm of commission merchants, inviting consignments of goods, and stating that they "will be covered by insurance as soon as received in store," did not import that they were personally to be the insurers of such goods, and that the agreement was performed by their obtaining reasonable and proper insurance against fire. court observes:

The

"The circular issued by the firm of Johnson & Co., inviting consignments of goods, does not import that they personally were to be the insurers of such goods against fire. It is simply a promise that the goods shall be insured, or,

in the language of the circular, shall be covered by insurance as soon as received in store.' A promise to insure is fulfilled by obtaining a reasonable and proper security against a contingent loss. The commission which they were to charge upon sales was to compensate them for all their charges for guaranty, for effecting and maintaining insurance, and for certain incidental expenses, and services attending the reception and care of property that should be consigned to them."

In the case under consideration the promise was made by an incorporated navigation company whose business is to carry, but not to inIndeed, it is questionable whether a contract of insurance would not be beyond the scope of its powers. The evidence of custom establishes the fact that the managers of such companies provide themselves with what are termed "blank policies," running to themselves as agents, for account of whom it may concern; in pursuance of which they issue certificates upon all such cargoes as their customers may wish insured, deriving an incidental profit by the usual commission upon such certificates. Beyond this, the finding shows that four cargoes had previously been shipped under precisely the same circumstances; that similar certificates were issued and deposited with O'Shea, and received by him, without objection. To the argument that O'Shea was not the agent of the plaintiff to receive such certificates or to insure the cargo, it may be said that the cargo was intrusted to Hammond, acting as agent of the Erie road, to carry to Lake Superior and to insure; that neither Chamberlain nor Ward had any dealings whatever with the plaintiff, and I think discharged their entire duty in the matter of insurance by issuing certificates, and delivering them to the party of whom they received the cargo. The contracts to carry and to procure insurance were practically one contract, which was made with the Erie road, and plaintiff has no right now to step in and say that he is not bound by its acts in that connection. We think the receipt and retention of these certificates by O'Shea must be held to estop the plaintiff from making any objection to the form of the policy or to the amount of the insurance.

Aside from this, however, it is not shown that the plaintiff's loss was not fully covered by an insurance of which he was entitled to take the benefit. Had the loss been total, there might have been some question whether the obligation to insure would be satisfied by anything less than an insurance to the full insurable value of the property; but, as the insurance was more than double the loss sustained, it is difficult to see how the plaintiff was prejudiced by failure to insure to its full value. The policy is in the usual form of cargo policies, the form which has been in use upon the lakes for 20 or 30 years,-and the provision against suit after one year is now so invariable in insurance policies that the court certainly cannot take judicial notice of the fact that it is unusual. The same remark may be made with regard to the provision concerning proofs of loss. Had these proofs been promptly made, as soon as the plaintiff was informed of the loss, and suit begun within a year, we see nothing in the way of a recovery. It is true that the certificate was issued in the name of "Eber Ward, Manager," and the loss, if any, payable "to assured

or order;" but the policy ran to "Eber Ward, Agent," "for account of whom it may concern;" and there is no question that, under the authorities, it may be shown whose interest was intended to be insured, in the same manner as if the plaintiff's name had been mentioned. Extrinsic evidence may always be resorted to for the purpose of ascertaining the interests intended to be covered. Lee v. Adsit, 37 N. Y. 86; Castner v. Insurance Co., 46 Mich. 15, 8 N. W. Rep. 554. A policy upon a cargo in the name of A., "on account of whom it may concern," or with other equivalent terms, will inure to the interest of the party for whom it was intended by A.; provided he, at the time of effecting the insurance, had the requisite authority from such parties, or the latter subsequently adopted his act, (Hooper v. Robinson, 98 U. S. 528;) and, if an agent procure a policy of insurance in his own name, either the agent or the principal may sue thereon, (Waring v. Insurance Co., 45 N. Y. 611.)

From the above statement of facts we find, as a conclusion of law, that the defendant has performed the contract set forth by the plaintiff in his declaration, and is entitled to judgment.

SCHLESINGER et al. v. SEEBERGER, Collector.1

(Circuit Court, N. D. Illinois. July 18, 1889.)

CUSTOMS DUTIES-CLASSIFICATION-SKINS DRESSED.

Skins dressed with the hair on, and sewed together in pieces 18 inches wide, and from 36 to 48 inches long, and used indifferently as rugs, mats, sleigh robes, and overcoat trimmings, are dutiable as "skins dressed and finished," under clause 461 of Heyl's Arrangement of the Customs Act of 1883, and not as "rugs, " under clause 378 of said Arrangement, which expressly refers to wool and woolen goods.

At Law.

Shuman & Defrees, for plaintiffs.

W. G. Ewing, U. S. Dist. Atty., and G. H. Harris, Asst. U. S. Atty., for defendant.

BLODGETT, J.

Plaintiffs imported a quantity of skins dressed with the hair on, which were invoiced as "Chinese goatskins." They were tanned, so as to make the skins soft and pliable, and consisted of small pieces of skin sewn together, so as to make parallelograms of about 18 inches wide, and from 36 to 48 inches long. The collector assessed them for duty as "rugs," under clause 378 of Heyl's Arrangement of the Customs Laws, at 40 per cent. ad valorem. The plaintiffs paid the duty so assessed under protest, claiming that they should have been assessed as "skins dressed and finished," etc., under clause 461 of Heyl, at a duty of 20 per cent. ad valorem.

The proof shows that these goods are sold to some extent for the purpose of being used as floor rugs; that they are also sold for door mats

Reported by Louis Boisot, Jr., of the Chicago bar.