Collier et al. v. Steamboat Captain's Association

Vol. I

All the costs incurred and taxed or to be taxed in this action, including the attorney and counsel fees paid and incurred by such commissioners or trustees in this action and in administering their trust, and a reasonable compensation to each of them, if they charge anything therefor, are first to be deducted from the fund, which is to be distributed according to the foregoing principles and upon the above mentioned basis.

We regard the former decrees of the court in this cause, which has all the time been pending here, as simply providing for the payment of some of the widows, who asked it, in advance of the final distribution of the fund, doubtless taking it for granted, on the representation of counsel, that the fund was more than ample to satisfy the claims of all the widows, which claims would be greater than such payments. No attempt was made to take away from any widow her rights in the fund, which the petition expressly admitted, such widows simply not asking part payments in advance of final distribution. If it shall turn out that there is not enough of the fund remaining for distribution to pay all the widows, and some have been overpaid, the effect of such decrees and payments simply, is to stop such unpaid widows and all other parties, equally, from objecting to such over payments. The rights of none in the fund still for distribution are thereby affected.

Counsel can prepare a decree in accordance with the foregoing holdings.

NOTES. Since announcing the foregoing opinion, it has been ascertained that the fund is more than sufficient to pay all the annuities of all the widows; and that the commissioners, by investing it, have caused the fund to accumulate. Therefore, an account should be taken of the net amount of such accumulations and every widow, including Mrs. Mann, should be allowed and paid the portion of such net accumulations as the amount of her annuity so invested produced. Thus, if an annuity invested even one-fifth of the fund and the fund had earned $500 net, the share of such annunitant's accumulation would be $100. This net accumulation will make a per cent., greater or less per annum, for the whole time on the aggregate investment; and in the case of widows, who have been paid $15 per month, let their annuities be calculated at such average net per cent. for the whole time, and charge each payment to them, with such net per cent. added thereto from the dates of payment. It may fairly be presumed that, if invested by the commissioners as the balance of the fund was, such sums would have accumulated at the same net rate; and the wholly annunity being allowed interest at that rate for the whole time, payments should be charged with it from the dates of payment.

Take average amount invested and average time producing the net gain to get the share of gain of each annuity.

Vol. I.

23

Cuyahoga Common Pleas Court.

USURY.

[Cuyahoga Common Pleas Court, February Term, 1876.]

NEZ PERCIS MINING Co. v. WINSOR & RANDALL, ET AL.

A rate of interest stipulated in a promissory note, made at a place where such rate is legal, will not be held usurious in Ohio, though larger than legal rate in Ohio, and note made payable in Ohio

CADWELL., J.

The cause of action in this case is a promissory note which reads as follows:

BINGHAM, UTAH, December 26, 1874. $4,000. For value received, we promise to pay E. Holden, or his order, four thousand dollars sixty days from date, with interest, at the rate of two per cent. per month, at the Second National Bank, Cleveland, Ohio.

(Signed)

WINSOR & RANDALL,
HINMAN & WINSOR.

There are no credits on the note, which was, at some time afterward, assigned to the plaintiff, in this case, by endorsing it as follows:

"For a valuable consideration, I hereby assign and sell to the Nez Percis Silver Mining Company, the within note without recourse to me.' L. E. HOLDEN.

The petition further alleges that the said note was executed and delivered to the said L. E. Holden, in the territory of Utah, and that two per cent. per month is a legal rate of interest in said territory.

The plaintiff claims to be entitled to $4,000 and interest thereon, at the rate of two per cent. per month, from December 26, 1874, and asks judgment accordingly.

The answer admits the execution and delivery of the note to L. E. Holden, in the territory of Utah, and admits the assignment of the note to the plaintiff in this case, but it denies that the plaintiff is entitled to interest on the sum of $4,000 at the rate of two per cent. per month, from the date of said note. The defendants say that the note is made payable at the Second National Bank of Cleveland, Ohio, which bank is without the limits of the territory of Utah, and is in the state of Ohio. Defendants admit that the rate of interest at two per cent. per month was legal in the territory of Utah at the time of the execution of the said note, but that the same, by its terms, was to be performed, satisfied and discharged within the state of Ohio, and that the plaintiff is only entitled to recover on said note, interest at the legal rate in Ohio, to-wit: six per cent. per annum and no more.

Plaintiff demurs to this answer, on the ground that it does not contain facts sufficient to constitute a defense, counter claim or set off.

Judge Caldwell sustained the demurrer, holding that the lex loci contractus determines the legal right of the parties, and it being admitted that the rate of interest of two per cent. per month was legal at the place where the note was executed and delivered, the plaintiff was entitled to recover interest at that rate at the place where the note is made payable, though that rate of interest is higher than allowed by the laws of Ohio.

Sherlock et al. v. Insurance Co.

Vol. I.

The decision of the court rested on the following authorities: 2 Parsons on contracts, 582 and 588; 2 Kent, 12 Ed., p. 460, 421, and note a; 6 Paige, p. 627; 20 Martin, La., Depan v. Humphreis; 38 Barbour, 352. Critchfield & McFarland for plaintiff.

E. Sowers for defendant.

FIRE INSURANCE—EVIDENCE.

[Superior Court of Cincinnati, Special Term, 1876.]

*THOMAS SHERLOCK, ET AL., v. GLOBE INSURANCE Co.

26

1. The testimony of an insane witness on a former trial cannot be proved by reading a bill of exceptions, prepared by the attorneys, purporting to contain all the evidence.

2. A witness can read his notes of the former testimony of an insane witness, if from such notes he can swear to the substance of all that the witness said, and will swear that he took full and accurate notes. But if part of the testimony was not taken in notes, they cannot be read.

3. An act of congress which prescribes a penalty for carrying vitriol, which is merely a penal statute, does not render the voyage illegal as to a policy, not on the cargo, but on the hull, where the vitriol carried by the boat does not render her unseaworthy, nor is the cause of the loss.

4. Where a boat is destroyed in specie, by collision and fire, the basis of ascertaining the liability of each insurer for the fire loss, is to deduct from her original agreed value, the damage caused by collision, or a sum necessary to bring her to port and repair her, being the damage not insured against. The value of the wreck as it existed at the port of repairs should be deducted, and the remainder divided by the proportion the amount of the policy bears to the agreed value of the boat.

5. If the boat remained in specie, and was repaired by the owners, the cost of recovering and bringing her to the port of repairs, caused by the collision, but not the increase of cost of so doing caused by the fire, and all proper items in the repairs account, would be added together, and one-third new for old deducted, and the proportion of such loss which the policy bears to the original value is the liability.

6. A repair means where the boat can be restored substantially what it was before the injury. If it would become substantially a different boat, so that the policies would reattach for the unexpired time, it is not a repair, and the rule of onethird new for old would not apply. Whether the boat was capable of repair, is a question for the jury, and the opinions of experts are not conclusive.

7. Under a clause that, on loss greater than half the agreed value of the boat, the owner might abandon her and claim total loss, an abandonment vests the wreck in the insurers. But if the owners make use of the wreck this waives any abandonment that had been made.

YAPLE, J., AND A JURY.

This was an action upon a policy of insurance against loss by fire only, upon the steamer United States, one of the mail companies' boats, carrying passengers and freight upon the Ohio River between Cincinnati and Louisville.

On the night of December 4, 1868, while making a down trip from Cincinnati to Louisville, the United States was run into by another of the plaintiff's boats, the America, on a trip from Louisville to Cincinnati.

*This decision of the superior court in a former trial, 1 C. S. C. R., 193, was reversed by the supreme court. See opinion, 25 O. S., 50. This decision was rendered upon a rehearing of the case.

2 L. B.

Vol. I.

Superior Court of Cincinnati.

The collision cut off the bow of the United States and cut a hole in her hull diagonally some thirty-five or forty feet, running clear through the boat, and from which she must have sunk, and did sink in a few minutes. Immediately after the collision, the United States took fire and was burned down to the water, in which she had sunk. The wreck was raised by the plaintiffs and brought to Cincinnati, but was not abandoned to the underwriters, though the plaintiffs claimed from them a total loss, and they denied all liability for the loss or any part of it. The plaintiffs made use of the wreck in constructing the present boat, United States, laying out in so doing about $100,000, and in her cabin, arrangements and appearance, the present boat is very unlike the old boat.

The amount of insurance upon the old boat was $105,000, and her agreed value $140,000, three-fourths only of which was insured or permitted to be insured. The boat cost, some two years and six months before her loss, about $206,000.

The Globe Insurance Company, on May 1, 1868, took for one year, a risk upon the boat against fire only for $10,000. The case was once before tried in the superior court and resulted in a verdict for the plaintiffs for about $9,000, was taken by the defendant to the supreme court on error, where the judgment was reversed, coming on again for trial, it was agreed that the verdict and judgment rendered in the case should settle all the cases upon the basis of such verdict and judgment. The case was on trial over two weeks, and resulted in a verdict for the plaintiffs of $8,125, principal, and $3,381, interest.

The court submitted to the jury three interrogatories to be answered and returned with their verdict:

1. Was the loss of the boat an actual total loss, the plaintiffs to account for what they saved of her after the fire, i. e., was the boat, by her injuries, destroyed in specie?

2. Was the loss partial only, i. e., did the boat remain in specie, and did the plaintiffs, instead of repairing her, take what was left of her and construct with the same and new materials another and a different boat, substantially from the old one?

3. Did the boat remain in specie and did the plaintiffs repair her? The jury answered the second interrogatory "Yes," and the other two "No."

Many important legal questions arose during the trial.

First-Since the last trial one of the plaintiff's most important witnesses became and continues insane. The case had been taken to the supreme court upon a bill of exceptions, embodying all the evidence, which was prepared by the attorneys of the defendant, who claimed at that time that they embodied therein the testimony of this witness fully and correctly. The plaintiffs offered to read such testimony embodied in such bill of exceptions as the former evidence of the insane witness. The defendant objected to its competency.

The court excluded the evidence, holding that such bill of exceptions was prepared but for a single purpose, viz.: to review the verdict and judgment upon error; and that the attorneys could make no admissions binding their client, except, for the purpose of such error proceedings; and it did not appear that any of the officers of the insurance company had ever admitted that such bill of exceptions contained the full evidence of such witness as given on the former trial.

Sherlock et al. v. Insurance Co.

Vol. I.

Second-The full notes taken by a phonographic reporter of the testimony of such witnesses at the former trial were lost, and the notes of the same taken by the counsel for the plaintiffs, were deficient in not containing what the witness testified upon being once recalled in chief, and no witness recollected what it was, in substance. The court held, that, when a witness, who took notes, by refreshing his memory from them, can swear that he can state the substance of all the witness sworn to, in chief and upon cross-examination, and substantially in the order the testimony was given he might prove such testimony of such witness at the former trial, or if such witness would swear that he took accurate and full notes of all such witness testified on such former trial, and that he was satisfied of the correctness and fullness of such notes, they might be read as such former evidence, though the taker of such notes be unable to recollect such testimony even by the aid of his notes. But, as a part of such testimony was not contained in such notes and not remembered by any witness, the evidence of such notes must be excluded.

Third-The policy contained a clause, that if the boat should sustain a loss by fire equal to or greater than half her agreed value, the owners might abandon her to the insurers and recover for a total loss.

The plaintiffs claimed that they claimed from the insurers for a total loss and that the latter denied all liability for any part of the loss, and that this was an abandonment, the actual loss by fire being more than $70,000; but they admitted that they kept and made use of the wreck for their own purposes, and that the insurers did not agree that they might do so without prejudice to their abandonment if one had been made.

The court held that an abandonment vested the title of the property abandoned in the insurer, which was not done in this case; for the plaintiffs converted the wreck to their own use, which would be a waiver of an abandonment had one been made.

Fourth-The court also held that the insured could not convert a partial loss into a total loss without abandonment; that, repair being possible, there could be no total loss without an abandonment, though the cost of repairing would be more than the boat would be worth when repaired.

Fifth—If what the plaintiffs did with the wreck, that is, using it in getting up the present boat, was a repair, within the reason of the law of marine insurance, then, by such law, and the terms of the policy, the defendant would have the right to have one-third of the cost of such repair deducted, because the repair would be of new materials, and worth one-third more than the old destroyed materials.

Sixth-If the boat by the collision and the fire was destroyed in specie, or as the individual boat, United States, the basis of ascertaining the amount of the plaintiffs' recovery was, to take as her original value, $140,000, and from this deduct the damage, estimated in money, caused by the collision, or what sum it would have taken to repair such injuries, taking into account, in estimating such damage, the fact that she must have sunk when and where she did and would have to be raised and brought to Cincinnati for repair, the expenses of all of which would be due to the collision, damages from which were not insured against; then the value of the wreck should be ascertained as it existed on arrival at Cincinnati, and these sums subtracted from $140,000, the remainder to be divided by fourteen, which would give the amount to be paid by the de