(Present: The R ight Hon. Sir J. W . Co lvile, Sir Barnes Peacock, Sir Montague Sm it h, and
Sir R. P. Co l l ie r.)
Br o w n in g (app.) v. Th e Pr o v in c ia l In s u r a n c e Co m p a n yof Ca n a d a (reaps:.).
Marine insurance—Policy—Principal and agent—
Right to sue—Certificate or slip—Contract—
Cargo— Total loss—Limitation of action.
A contract of marine insurance, entered into with underwriters by an agent in his own name, but without expressing the interest in the subject of insurance to he in any particular person, may be sued upon by the principal in whom the interest is Where the common form of policy of a marine
insurance company contains the usual clause,
“ A. B. as well in his own name as and for and in the names of all and every other person or persons to whom the same shall appertain, &c.,”
and it is the usage of the company on accepting a risk to issue a certificate or slip as a provisional agreement entitling the assured to a policy in their common form, the certificate is to be con- strued as a contract containing the above clause, and, i f the certificate is made out in the name of an agent, the principal on whose behalf the con
tract is made may {in Canada where there are no Stamp Acts as to agreements for marine insur
ance) sue upon the certificate in his own name.
Where ship and cargo are wrecked and cast ashore, but part of the cargo continues to exist in specie and is taken out, and, it being impossible to forward it to its destination, is sold by the salvors on the spot, there is no total loss of the cargo, actual or constructive, until the sale has taken place : and, consequently, a condition in a policy on the goods, that no action shall be maintainable on the policy unless commenced within twelve {a) A further deposit was filed, alleging the posses
sion by the plaintiff o f letters from the defendant, in which reference was made to letters of the plaintiff re
ceived by the plaintiff on particular dates, and also alleging the possession by the plaintiff o f a copy o f a letter sent by him to the defendant, and its date. Gn this affidavit the application was granted.
36
M A R IT IM E LA W CASES.
Pr i v. Co.] Br o w n in g (app.) v. Th e Pr o v in c ia l In s u r a n c e Co. of Ca n a d a (re sp s.) [ Pb i v. Co.
months after any loss shall have occurred, is complied with i f an action, to recover for a total loss of the goods, is commenced within twelve months after the sale has taken place ; the action need not he commenced within twelve months after the wreck.
Th iswas an appeal from a judgment of the Court of Queen’s Bench for Lower Canada, affirming a judgment of the Superior Court for Lower Canada, district of Montreal, in an action brought by the appellant against the respondents on an alleged contract of insurance of a cargo of flour.
The w rit was issued on the 3rd March, 1869.
The declaration was also filed the 3rd March, 1869, and the first count set out a certificate of cargo insurance granted by the defendants to one Joel Leduc for 7,000 dols. on a cargo of flour, and alleged that the said Joel Leduc had insured the said goods as agent for the plaintiff, that the plaintiff was interested in the goods to the fu ll value of the sum insured, and that the goods had been lost by perils of the sea. The count also contained an averment that the defendants were bound by custom to issue to the plaintiff a policy of insurance in accordance with the terms of the certificate, either in his own name or the name of Joel Leduc, and all others interested in the goods, and that they had not done so. The second count alleged generally that the plaintiff had insured the goods with the defendants through the agency of Joel Leduc, and the loss of the goods. The third count was a common money count for money had and received by the defendants to the .use of the plaintiff.
The defendants filed on the 11th May, 1869, two pleas, and a defense au fonds tn fait.
The first plea set up that the said Joel Leduc had previously insured the ship Babineau and Oaudrywith the defendants, on the express con
dition that i t should not remain in the Gulf of St.
Lawrence after the 16th Nov., that the insurance of the cargo of flour being between the same parties and for carriage by the said ship was im pliedly subject to the same condition, and that the loss occurred through the ship remaining in the G ulf of St. Lawrence after that date. The second plea set up a condition contained in the certificate of insurance that no action should be brought for any loss, except w ithin one year next after the loss occurred, and averred that the loss of the cargo occurred more than a twelvemonth before action brought. The defense aufond.s enfait tra
versed all the averments in the plaintiff’s declara
tion, and in particular expressly alleged that the contract with Joel Leduc had been made w ith him personally, and not as agent of the plain
tiff.
Theplaintiff, on the 15thMay, 1869,filed answers traversing the defendants’ pleas, and he joined issue on the defendants’ defense au fonds enfait.
The defendants on the 20th May took issue on the plaintiff’s answers.
The facts as proved, or admitted, were as fol lows:
The plaintiff, who was a baker and merchant, liv in g at St. John’s, Newfoundland, instructed one Joel Leduc, who had acted as the plaintiff’s agent for a long time previously, to purchase flour for him at Moutreal, and forward it to him at St.
John’s, Newfoundland. Leduc accordingly pur
chased 1,063 barrels of flour and loaded them on board a vessel called the Babineau and Oaudry,
and drew bills upon the p la intiff for the amount of the flour, including his own commission.
In Nov. 1867, Leduc applied to the defendants agent at Montreal, R. T. Routh, to insure the flour for the voyage to St. John’s, and Routh, after bommunicating unth the head office, granted him a certificate of insurance, which was in the follow
ing terms :
Provincial Insurance Company of Canada.
Certificate of Cargo Insurance, No. 116, Montreal, 15th Nov., 1867.
Joel Leduc, Esq., has this day effected an assurance to the extent of seven thousand dollars on the under
mentioned property, from Montreal to St. John’s, New
foundland, shipped in good order and well-conditioned on board the schooner Babineau and Oaudry, whereof.
E . Vigneau Is master this present voyage.
Said insurance to be subject to all the forms, con
ditions, provisions, and exceptions contained in the policy of the company, copies of which are printed on the back hereof.
(Sd.) R . T . Ro u t h, Agent.
P. Al b e r t Va s s.
Description of Goods Insured. Amount. Rate.
On 1063 barrels flour, paid 21st Nov. 1867.
( S ig n e d ) R. T. So u t h,
P. Al b e r t Va s s.
$7,000 0 0
Premium.
$230 0 0
On the back were, amongst others, the following conditions :
I t is furthermore hereby expressly provided that no suit or action against said company for the recovery of any claim upon, under, or by virtue of this policy shall be sustained in any court of law or chancery, unless such suit or action shall be commenced within the term of twelve mopths next after any loss or damage shall occur, and in case any such suit or action shall be commenced against Baid company after the expiration of twelve months next after Buoh loss or damage shall have occurred, the lapse of time shall be taken and deemed as conclusive evidence again the validity of the claim thereby so attempted to be enforced. ^
The interest of the insured in this policy is not assign
able unless by consent of this corporation, manifested in writing, and in case of transfer or termination of the interest of the insured, either by sale or otherwise w ith
out such consent, the policy shall from thenceforth be void and of no effect.
Leduc paid the premium of insurance, and included the amount in the invoice he sent to tho plaintiff and the bills that he drew on him. A t the time the goods were insured the plaintiff bad not paid the bills drawn upon him, and Leduc took the certificate of insurance in his own name, that be m ight be secure if the plaintiff did not meet the bills. No policy was ever issued, and there was no evidence of any agreement express or implied to issue a policy other than the certifi
cate of cargo insurance, except the statement by one of the plaintiff’s witnesses, Routh, the agent, who issued the certificate, that it was the custom of the defendants to issue policies of insurance in a form produced by him on all certificates of cargo insurance, the certificate of cargo in surance being a temporary substitute and bind
ing t ill the policy was issued. The policies used by the company were in a regular printed form, and commenced as follows : “ A. B. as well in his own name as for and in the name and names of all and every other person and persons to whom the same doth, may, or shall appertain, in part or in a ll; doth make assurance, and cause to be insured lost or not lost, &c.” The plaintiff was proved to have paid the bills drawn on him by
M A R IT IM E LA W OASES. 37
1’iuv. Co.l Br o w n in g(app.) v. Th e Pr o v in c ia l In s u r a n c e Co. op Ca n a d a (resps.) [ Pr iv. Co. Leduc when due, and to have been interested in
the goods to the amount of the sum insured at the time of their loss, but no transfer was ever D'ade to him of the insurance with the consent of the defendants. I t was admitted by the plaintiff that Leduc had previously insured the vessel Babineau and Gaudry with the defendants, by a policy containing a condition that the vessel should not remain in the Gulf of Sb. Lawrence after the 16th Nov. 1867.
The facts as to the sailing and loss of the vessel and cargo are fu lly set out in the judgment.
l-’he ca3e was" heard in the superior court, before Beaudry, J., on the 21st March, 1870, and on the 31sb of March that court gave ju d g ment in favour of the defendants, on the ground tnat the loss occurred more than twelve months before the commencement of the action.
The plaintiff appealed to the Court of Queen’s Imuoh, and the case was heard on the 3rd Dec., 1870, before Duval, C. J., and Caron, Badgley and Monk, J J .; and on the 9bh March, 1871, that court gave judgment, confirming the judgment of t ne court below. The majority of the court were m opinion that the action had been brought in one time and that the judgment of the superior court was in that respect erroneous. The judg
ment of the superior court was confirmed upon the ground that the contract of insurance was in the name of Leduc only, and that Browning could not sue upon it except it were made for Browning and in his name.
Against this judgment Browning appealed to tie r Majesty in council, and alleged as the grounds
°f his appeal the following reasons :—
1'irs t, because i t is established by the evidence that the said Joel Leduc in entering into the said contract of insurance was acting as the agent of the said Gilbert Browning; secondly, because the Seneral rule of law that an undisclosed principal
“ my take advantage of the contract entered into y his agent applies to policies of marine in surance ; thirdly, because policies of marine in surance according to universal usage and the custom of the respondent company enure to the enefit of any one beneficially interested at the time of loss in the property insured; fourthly, ecause the language of the policies of the respon- . ent company is specially adapted to cover the interest at the time of the loss whoever may be he owner of the property; fifthly, because the Policy on the h u ll of the Babineau and Gaudry did n°t m any manner control the insurance made upon the appellant’s flo u r; sixthly, because no reach of warranty was established by the respon- uents; seventhly, because the action was com
menced within due time ; eighthly, because even a though the court may have been of opinion that he agency of the said Joel Leduc in effecting the said insurance was not established, the appellant bhould under the counts for money had and r pC®iv 6d in his action have recovered the proceeds o hig flour taken possession of and sold by the
§unts of the respondent company at Gaspe, the
?a*d proceeds, having been, as admitted by their hspector and manager, received by the said esPondent company. The appellant submits that under the said counts for money had and received / s h o u l d have had judgment for either 533 0 Jars at least as the balance of the alleged pro- tn f i ^ e flour after payment of salvage, or the lal amount of 1796 dollars realised by the sale
of his flour, there being no proof of the value of the salvage services, but merely a state
ment of salvage made by the respondent Com
pany.
Wathin Williams, Q.C. and W. W. Kerr, for the appellants.—First, on the question whether the appellant may sue on the contract made by his agent. In Sims v. Bond (5 B. & Ad. 339), i t is said by Denman, C.J., “ I t is a well-established rule of law that where a contract, not under seal, is made w ith an agent, in his own name, for an undisclosed principal, either the agent or principal may sue upon it.” A n agent cannot escape liabi
lity under a contract which he has signed in his own name, but his principal may s till take advan
tage of, or be sued upon the contract:
Higginsv. Senior, 8 M & W. 831; Bumble v. Hunter, 12 Q.B. 310 ; Smith’s Leading Cases, 6th edit. p. 355 ; Ramazotti v. Bowring, 7 C. B. N . S. 851.
In Arnould on Marine Insurance (4th ed. p. 223), it is certainly said that if i t were not for the assignment clause in a policy, only the person in whose name i t is effected could sue. In answer to this, however, I submit that there is no distinc
tion between a contract of insurance and other contracts not under seal. I f the agent has taken out the words “ as well in his own name, &c.,” and expressly described himself as owner of the goods, it might then be contended that the appellants could not come forward and claim an interest in them as against the respondents, and that is pro
bably Arnould’s meaning. This distinction is clearly pointed out by Duer on Marine Insurance (vol. ii. lect. ix. § 18). Moreover, his certificate of insurance was not the contract its e lf; i t was only the memorandum of the contract. By the respon
dent’s custom they were bound to issue^ a policy, in accordance w ith the certificate, containing the assignment clause. Where a memorandum for an agreement refers to another instrument containing fu ll particulars of the contract, then both instru
ments are to be read together, as forming oneand the same contract: (Bidgway v. Wharton, 6 H. of L. Cas. 238). I t was clearly the intention of these parties that the policy and not the certificate alone was to be the contract between them. The cer
tificate is like the slips used in this country.
There can be no doubt, on the evidence, that the flour was purchased on behalf of the appellant.
When the flour was shipped deliverable to the appellant, the property at once passed to him, and he became liable for i t :
Browne v. Hare, 4 H . & N . 822 ; Joyce v. Swann, 17 C .B. N . S. 84.
Secondly, with regard to the point that the action ought to have been brought w ithin a year a.ter the loss occurred. The loss having been proved, i t lies on them to show when i t occurred i f they wish to avoid their contract. This is a lim itation of our rig ht to sue by express agreement. Such a lim itation must be governed by the same rule of construction as is applicable to limitations imposed by law. I t is quite clear that by Canadian law the appellant is only bound to brink this action w ithin a reasonable time after the loss came to his know
ledge, if i t was impossible for him to have made his claim sooner: (C ivil Code of Lower Canada, Nos. 2232, 2478.) The rule was the same by civ il la w : (Mackenzie’s Roman Law, p. 186 et seq.) Moreover, there is no evidence to show that the loss of the vessel did not occur just before it
38
M A E IT IM B LA W CASES.
Pr iv. Co.J Brow ning, (app.j v. The Pr o v in c ia l In s u r a n c e Co. op Ca n a d a (reaps.) [Pr iv. Co. came to the appellant’s knowledge. The loss on
the goods, however, clearly did not occur more than a year before action brought. This is a claim for a total loss, and at the time of the discovery of the loss of the vessel the goods s till existed in part at least, and any loss to be total could be construc
tive only, and the underwriters must have re
ceived notice of abandonment, and u n til this there could be no loss w ithin the meaning of the lim ita
tion. Even if the loss is to be considered total, and no notice' of abandonment necessary, the actual total loss did not take place u n til after the sale of the flour, whereby it was lost to the assured. The acts of the directors of the company, after the loss became known, must be considered as a waiver of the condition that the action must be brought within a year.
Sir J. Karslahe, Q.C. and Bompas for the re
spondents.—Leduc was not a mere agent; he bought, and resold on commission, and so had an actual interest in the goods beyond the mere com
mission charged. He was a factor, or commission merchant, and had power to deal w ith the goods as he chose: (see Story on Agency, § 33.) This in surance was intended to cover Leduc’s own interest and not that of the appellant. U n til such time as the appellant accepted and paid the bills of ex
change drawn upon him by Leduc, the interest in the goods remained in the latter, and i t was for him to cover them by insurance. This he did, in his own name, and really for the purpose of securing himself in case the appellant failed to pay for the goods and not for the benefit of the appellant. Leduc having clearly an insurable interest, i t must be taken that, as he has insured exclusively in his own name, his intention was to cover his own risk only. When a contract of insurance is not expressed to be for the benefit of all concerned, but a particular person is named therein for whose benefit the insurance is apparently effected, the contract must be taken to be limited to that particular person so far as the power to sue is concerned. Where a party insures on behalf of himself and others, but in his own name, the action must be brought in the
change drawn upon him by Leduc, the interest in the goods remained in the latter, and i t was for him to cover them by insurance. This he did, in his own name, and really for the purpose of securing himself in case the appellant failed to pay for the goods and not for the benefit of the appellant. Leduc having clearly an insurable interest, i t must be taken that, as he has insured exclusively in his own name, his intention was to cover his own risk only. When a contract of insurance is not expressed to be for the benefit of all concerned, but a particular person is named therein for whose benefit the insurance is apparently effected, the contract must be taken to be limited to that particular person so far as the power to sue is concerned. Where a party insures on behalf of himself and others, but in his own name, the action must be brought in the