CONTINENTAL INS. CO.
that the schooner would not change her course. She did so presume, and neared the schooner in that legitimate presumption. When she found that the schooner had unaccountably changed her course, and rendered a collision imminent, she did what the law requires her to do,-she immedil\.tely reversed her engine and backed on her wheels. I do not see that she was in fault in any particular. The schooner was in fault, and I will decree accordingly.
CO. OF NEW YORK CITY. 1
(District Oourt, D. Minnesota. September, 1885.)
MARINE INSURANCE-VALUED POLICY.
A valued policy is one in which the value of the property insured is fixed and agreed upon hy both parties to the contract, and in case of total loss it is not necessary that proof should be made of the market value at the time and place of shipment.
Unless a certain amount is stipulated and expressed in the contract of insurance as the value of the property upon which the risk is taken, then it is necessary that proof should be made of the market value in case of loss, and such a policy of insurance is denominated an open policy.
SAME-CUSTOM AND USAGE.
Evidence of custom and usage cannot be received to change the contract of insurance.
An open cargo policy was issued by the Continentatinsurance Company of New York City to its agents at Duluth, Minnesota, and they issued to the shippers of certain wheat a certificate as follows: "This certifies that M. & M. are insured under and subject to the conditions of open policy No. 649, issued by the Continental Ins. 00. of New York city, at t·he Duluth agency, in the sum of $8,000 on 17,000 bushels wheat, in board cargo of schooner Carlingford, at and from Duluth to Buffalo. $8,000 at 2.25 per cent. is $180, which is hereby acknowledged to have been received. Loss, if any, payable to M. & M., or order hereon, and return of this certificate." lield, that this was an open and not a valued policy.
In Admiralty. O. K. Davis, for libelant. w. D. Cornish, for respondent. NELSON, J. A libel is filed to recover upon a contract of insurance, by which the defendant agreed to cover a quantity of wheat shipped from the port of Duluth to the city of Buffalo. An open cargo policy was issued by the company to its agents at Duluth, and the contract of insurance arises under this policy and the certificate by which this particular risk was taken. This certificate was ex.e1 Reported
by RobertsoD Howard Esq., of the St. Paul bar.
euted and delivered to the shippers, October 19, 1881, and is in the words and figures following:
"CONTINENTAL INS. Co. OF NEW YORK CITY. "No. 12,104. INLAND MARINE DEPARTMENT. certifies that Munger & Markell are insured under and subject to the conditions of open policy No. 649, issued by the Continental Ins. Co. of New York city at the Duluth agency, in the sum of eight thousand dollars, on 17,000 bushels wheat, in board cargo of schooner Carlingford, at and from Duluth to Buffalo. $8,000 at 2.25 per cent. is $180, which premium is hereby acknowledged to have been received. Loss, if any, payable to Munger & Markell, or order hereon, and return of this certificate. "This certificate is not valid unless signed by the authorized agent for this company at Duluth, Minn. "GEO. SPENCER & CO., Ag'ts. [Signed] "])uluth, Minn., October 19, 1881."
And indorsed across the face of which certificate was the fcilowing:
"Permission is given to load and carry a locomotive and tender on deck to Prince Arthur's Landing, if towed there, also to tow below said Landing."
A stipulation is filed under which the court is to determine whether the policy is an open or a valued policy. This is the sole question, and its solution settles the controversy. It is agreed that if it is decided that the policy is open and not valued, there can be no recovery. The contract of marine insurance is an agreement by the company, in consideration of a certain sum paid, called "premium," to indemnify the insured for loss which may occur by the perils of the sea men· tioned in the policy. This is accomplished by paying the insured . the value of the property at risk, with expenses of putting it on board, etc. In case of a total loss the insured loses as much as the property was worth when shipped. A valued policy is one in which the value of the property insured is fixed and agreed upon by both parties to the contract, and iu case of total loss it is not necessary that proof should be made of the market value at the time and place Qf shipment. Unless a certain amount is stipulated and expressed in the contract of insurance as the value of the property upon which the risk is taken, it is necessary that proof should be made of the market value in case of loss. Such a policy of insurance is denominated an open policy. How can the value be determined, in this case, except by proof of the market price per bushel at Duluth? No value is fixed in the certificate; only tlle extent of insurance is limited to $8,000, and the certificate of insurance states that it is made under and subject to the ctlnditions of the open policy issued to the company's agents. These writings constitute the policy by which the contract of indemnity is effected, and as the value of the wheat is not agreed upon and expressed In the policy, it is an open and not a valued policy. The evidence of custom and usage offered cannot be received to change the contract. A decree will be entered dismissing the libel.
.1ETNA NAT. BANK '11. MANHATTAN LIFE INS. CO.
lETNA NAT. BANK
and others v.
MANHATTAN LIFE INS.
Co. and others.
(Oircuit OQurt, S. D. New York.
DECEASED DEBTOR TO BET ASIDE.
J. FRAUDPLENT ASSIGNMENT OF LIFE INSURA:NCE POLIcy-BILL BY CnEDITORS OF
A bill in equity may be maintained by creditors of a deceased debtor to set aside a fraudulent assignment of a life insurance policy originally payable to the debtor. his executors, administrators, and assigns, but fraudulently assigned by him to his wife while he was insolvent, and without valuaule consideration, notwithstanding such creditors have not obtained judgments at law against the debtor in his life-time, or against his representa(,ives after his decease; it appearing that the complainants had, prior to the death of I he deutor, outained a decree in equity against him and his wife in the circuit court of the United States for the Northern district of Florida, in which the amount of the complainants' debts was adjusted, and in which the said deutor was adjudged to be absolutely insolvent.
SAME-INJUNCTION PENDENTE LITE.
It appearing that the fund would be liahle to be placed out of the jurisdiction of the court, and beyond the I each of creditors in case they should be ultimately found to be entitled, if the injunction should be refused, held, that an injunction pendente lite should be granted to rest! ain the insurance company from paying over the ill,'ney under the policies until the rights of the parties should be dcrtermined.
In Equity. William B. Hornblomer, for plaintiffs. John W. Weed, for defendants. WHEEIJER, J. According to the bill in this case the policies in question on the life of the husband were origmally made payable to the executors, administrators, or assigns of the husband, and the premiums were paid out of his property, which, in equity, belonged to his creditors. And the assignment to the wife shortly before the death of the husband was for a merely nominal consideration, pecuniarily, and was made for the purpose of the avails of the policy beyond the reach of his creditors. It is inferable, from the statements of the bill, that the assignment was made in Florida, and not in New York. Its effect may be governed by the laws there rather than by the laws of New York, where the insurance company is located. And by the laws of either the assignment may be so far inoperative, as against his creditors who bring this bill, as to entitle them to the amount due on the policy in preference to the wife as assignee. The fund would be quite liable to be placed out of the jurisdiction of this court, and beyond the reach· of the creditors, in case they should be ultimately found to be entitled, if an injunction should be refused and the stay already granted vacated. It seems proper, therefore, that the fund be held where it is until the rights of the parties to it are determined. It is objected that the creditors have not a sufficient judgment at law upon their claims to entitle them to maintain this proceeding. They have, however, a decree of the circuit court of the United States v.24F,no.14-49