that thec"onstrfIction which the parties themselves own contract; and, upon which they have so long acted, is:the pne which the court pught to adopt. The demurrer to the bill is, sllstained. FOSTER, J., concurs.
LUNT and others v. BOSTON MARINE INs. Co.
(Circuit Court, S. D. Nelo York.
'l\!ARINE INSUllAN('E-REPRESENTATIONS-REPAIRS TO VESSEL-SEAWORTIIINESS, BURDEN OF PnOOF, '
'Where a vessel had put into Shelburne, Nova Scotia; leaking and in distress, and repairs were recommended after a survey, and the vessel sailed for Yarmouth for repairs, and a memorandum of in'surance was effected upon the cargo before hcr arrival at Yarmouth, the application for the insurance containing a statement that the vessel was to be repaired at Yarmouth, lteld, in an action on the contract .of insur:'lI1ce, that the requirement was only that such repairs as were necessary should be made, and if none were necessary none need be made; and that, although in ordinal'}' Cases the burden of proof in cases of defense of unseaworthiness of the vessel rests upon the defendant, in this ease, with statement that the vessel was to be repaired at Yarmolith, in the application, the burelen rested upon the plaintiJI, Lunt v, Boston Marine Uo. 6 FED. HEP, 562, followed.
Motion for New Trial. TVelcollll' U. Beebe, for plaintiffs. Robert D. Benedict and Enos N. Taft,for defendant. WHEELER, J. This suit i'l brought upon a contract of marine in,surance on a cargo of potatoes on board the schooner Lacon from .Yarmouth, Nova Scotia, to New York. It was tried, and there was ,ll verdict for the plaintiffs, 'which waR set aside on motion of the defendant. G FED. REP. 5fi2. It has now been again tried with a like result, and been heard upon a, similar motion. The vessel had put into Shelburne, Nova Scotia, leaking and in distress. The master :had. made a protest against her to the consular agent, stating her .condition and asking for a survey, which was had, recommending repairs. She sailed toYarD1outh for repairs. The insurance was effected before her ani..-al there, on an application by the owners, signed by and on behalf of them, in due form. A short ,memorall·dum of the insurance was made' and delivered to the insured, and no . policy was written,ont. The application was produced on the trial, 'and contained tue statement that the "esse) was to be repaired at 'Yarmouth.' The plaintiffs' evidence tended to show that this state-ment "'usnot' in the application: when made, but was inserted after'wards, without,theirknQwledge or consent; and that the vessel was "examined at: Yarmonth, :and was not le.aking, anddjcl not: need.any
repairs. Among other testimony to that effect was that of the master. The defendant's evidence tended to show that the owner ing the insurance, in negotiating with the agents, stated that the vessel was to be repaired at Liverpool, afterwards changed to Yarmouth; that the agent would not take the risk without, and that the ment about repairs was inserted thero before the application was signed; that the ves5el was in fact unseaworthy; and that she was not taken out of the water or unloaded for examination at Yarmouth, nor any repairs made. The court held that the plaintiffs were not bound by any statement in respect to repairs to be thereafter made not inserted in the application; that, if the statement as to repairs to be made was in the application, the plaintiffs were not entitled to recover without showing that the vessel was in as good conditiou as if the defects contemplated had existed and been repaired, so that she was tight, stanch, and strong, and seaworthy in fact; that, if the statement was not in, the plaintiffs would be entitled to recover unless the defendant showed that she was unseaworthy; and that the statementlil of the master in the protest to the consular agent were not evidence that the facts were as there stated, but were impeaching of his testimony to the contrary. The principal questions made arise upon these rulings, and instructions accordingly to the jury. There is no claim that there were any fraudulent representations as to then existing facts. The representation that the vessel was to be repaired at Yarmouth was in the nature of an undertaking that she should be so repaired. All the undertakings of the plaintiffs in this behalf were assumed to be in the application. The undertakings of the defendants which would have appeaJ;ed in the policy were not in the memorandum, nor assumed to be. Earol evidence would undoubtedly be admissible to BUpply what was so left out. Such evideuce would not add to a written contract, for the contract was not written, nor understood to be writte.n. It was largely left in parol, with full knowledge that it was so left. Not so with the application. That was nnderstood to be The paper signed contained all that the parties intended to be put in, and it was signed as a completed tiling. To admit evidence of other undertakings by the parties executing it, made befQl'e it was executed, to the same end, would be directly contrary to the rule that written contracts cannot be added to or altered by contemporaneous oral contracts. Pawson v. Watson, Cowp. 785. The question as to where the bnrden-of proof rests in cases of defense for unseaworthiness was fully and carefully considered when this case was np before, and the conclusion reached that in ordinary cases it rests upon the defendant; but that in this case, with the statement that the vessel was to be repaired at Yarmouth in the application, the burden rested upon the plaintiffs. Lunt v. Boston MCl.1·;ne 1118. Co. 6 FED. REP. 562. Nothing more than to refer to the
MiNT V. BOSTON 1IlAIUNE INS. 00.
ion then made seems to be now neeesilllry. That reasoning and result are fully concurred in. The burtlen was shifted and placed fully upon the plaintiffs at this trial. The defendant insists, however, that this was not all that was necessary; tlutt as no repairs were made a verdict for the defendant should lin ve been directed. More was put upon the plaintiff than the proof of lUere seaworthiness. The undertaking as to repairs was required and given in view of a supposed defect. If the defect did not exist, the su p[losition was without foundation, and what was agreed should be dOlle W:1S already done. There was a mutual mistake as to the obJect of the undertaking, which tJ'.ade it nugatory and prevented its fuifilllllent; if there was no defect there was nothing to repair. The enll sought was accomplished without making the repairs. This view was also considered bafure, and with reference to it Judge WALLACE said: "In the present case it is to be assumed the jury found that, after an examinatioll at Yarmouth, it was ('dd"lIl 110 repairs were needeLl. anLl that the vessel was in a fit condition to -,Ion her voyage. This being so, it would seem too plain to doubt that !H'it hl'r the interests of the inslll"er nor the fair purport of the promise re1l1ir8(1 that to be done by the plaintiffs which would have been superfluous auLl futile."
It is now argued, however, that there was no sufficient evidence to warrant the finding that there was no defect to be repaired; that this could not be told without taking the vessel out of the water, and that the repairs c,ontemplated were sllr'h that they could not be made without taking her out; and that, in eJlect, the finding of the jury has been substituted for the fact of repairs which the defendant took tbe risk upon. The question as to whether the tightness of the vessel could 1e ascertained without taking her out, was one of fact for the jury, and not of law for tlle court; and one of which the defendant had the full benefit in a faithful pl'esentation in argument to the jury. The extent or kind of repairs to be made was not specified. It was not required that the vessel should be taken out of the water and examined to see what repairs were necessary, and that such as were so found to be necessary should be repaired. The simple requirement was, to be repaired at Yarmouth. This would seem to require only that such repairs as were necessary should be made, and to mean that, if none were necessary, none need be made. 'Whether any were proof that none were necesnece3sary, and what would be sary, would be always qnestions of fact for the jury, so long as there to show that none were was any evidence fairly and legally necessary. There was testimony of surveyors and other experts to making examinations, and to finding the vessel sound; such that it is not claimed to be insufficient, otherwise than as it is claimed that nothing short of taking her out of the water would be sufficient. As argued, the agent probably would not have taken the risk on an undertaking that the vessel should be found by a jury to need no repairs; but that does not answer the case of the plaintiffs. Parties do
notrordinarly stipulate upon the verJicts of juries; b,ut when ,qley entcr into contracts ,which cannot be solved without settling facts,it ,becomes necessary that they should be bouud by the findings of juries. .The verdicts do not make new· contracts for the p,irties, but settle , disputes about those which the parties make for themseh·es. In making, the protest to the consular agent about the condition of .the vessel, the master was not acting in. any sense as the agent of .the plaintiffs about the matter now in controversy. This insurance had not then been effected, was not being effected, nor was anything being done about it. In fact, he was not making the protest for them, but rather against them, in laying foundation for proceedings against their property to pay expenses of repairs. His statements ,in making the protest were, it seems clearly, not so made for them in the course of their business now involved as to bind them. As the case is now understood and considered, the motion must be overrulen. . 'Mot.ion for new trial overruled, judgment for plaintiffs on the verdict, and stay of proceedings vacated.
L. E. & W. R. Co. v. McHENRY.
(Circuit Court, 8. D.
SUIT BY JUDmlENT-AcTION ING-EVIDENCE-BILL OF PAHTICULATIS.
'Where a plaintilf is of the original cause of aCLlon, SUCll transfer to him is one of the fncts constituting the canse of action, and should be properly aHeg-ed in the pleadings; but where a jUd;.:ment ha'i been obtained in a foreign court, and the action is brought on the original dellt and not on the judgment, and defendant has been fully auvisCll bya biHof particulal's of the nature of plaintiff's claim, the court, on motion for new trial, may allow the pleadings to be amended nnnc pro tunc, so as to renler admissible tlie testimony showing tile transfer or assignment of the claim to plaintitI offered on the trial.
.TUDGMENT-}IETIGEp. OF OIlIGINAL DEnT.
As the original debt is not merged in a judgmimt rendered in a foreign eourt, a certified copy of sneh jurlgrnent may he used as evidence by either party, in a suit on the original cau,:e of action, without a formal allegation in the pleadand if it settles the whole controversy bet,,"ecn the parties it ought to be held conclusive. . . ·3. Dm.\F;sTIc The authoritative character of a domestic judgment is founden, among other reasons, on the constitutional provision which guaranties full faith and credit to the records and judicial proceedings of every state, while the rule as to foreign judgments rests upon considerations of comity; and though they are treated by the courts, in respect to their conclusiveness, as entitled to the same weight as domestic .judgments, they do not, to the same extent as a domestie judg· . ment, extirig:uish the original contract deut. . .
. . · . TV, TV. MacFarland and lVlIl.G. C/wale, for plaintiff. t:" P.... S'uh and B.B.DllIwill, for.defendant.: ..