Porter, J.,
delivered the opinion of the ... court. 1 his action is brought on a valued policy oi insurance. I he plaintiffs claim the whole amount. The defendants pleaded the general issue. The cause was submitted to [641]*641a iury. who found a verdict for llie petitioners for 4,500. Both parties appealed. ..
The policy is in the usual form, and contains at the bottom, the common list, of memorandum articles. Underneath this enumeration there is written:
“ This insurance is declared to be on cargo, valued at $11,000.
“ Mules on and under deck against stranding or a total loss.”
The defendants and appellants have madc-in this court, the following points:
1. The valuation of the cargo, made by the plaintiffs was erroneous, extravagant and void. Phill/ps on Insurance* 300, and 307.
2. The risk insured against was not full) and fairly represented by the . plaintiffs. Ibid. 80 to 83.
3. The constructive total loss is excluded in all memorandum articles. Parke, 112, 113, to 115; Phillips, 483 arid 488; 8 Cranch, 39, and 46 to 50 ; 1 Wheaton, 219, and 224 to 232 ; 2 Maule & Selwyn, 371 to 375.
4. Tt»e loss insured against, even if the insurance had been in the body of the policy, was an absolute, aiturMy:jor.:;pljysical Total [642]*642loss, not a legal, technical, or constructive ° total loss. Marshall, 414, chap. 13; Phillips, 382, 383, 489, 490, and 491 ; 6 Massachusetts, 465 and 471; 7 Johnson, 527.
5- ln the construction of a policy of insurance, the written controls the printed part; and in the present policy the risk insured against is specified in writing. Phillips, 18 and 70; 4 East, 130, 135, and 140.
6. The destruction, or physical total loss of a part of the cargo insured, if it consist of memorandum articles, or articles insured against total loss only, does not amount to a total loss, so as to enable the assured to recover for the part so lost or destroyed. 1 Wheaton, 219; 7 Common Law Rep., 39 to 43; 3 Ibid. 127.
7. In case of a total loss, the valuation fixed in the policy remains, unless overrated, but a partial loss opens the policy, and the value of the thing lost must be proved. Phillips, 305 and 313; Park, 111; Marshall, 203.
8. The case ought not to be remanded, inasmuch as it is admitted the vessel arrived at her port of destination with part of the cargo.
[643]*643The first objection is, that the ,cargo was , , , „ . . , , overvalued. Arguments or tins kind come with a bad grace from underwriters, if there was no intention to defraud them. They re-reive a premium for the whole amount stipu-lau'd iti the policy, and are benefited pro tanto ; they should therefore bear the loss, if th.e contract was in good faith. If indeed, it appeared that the value given to the articles put oil board was to enable the insured to profit, by destroying the property protected by the insurance, the contract would be avoided. But, apart from these considerations. we can see no reason on which the policy should be annulled, from the mere fact of the articles insured being valued too high; it rather affords an argument in case of total loss, from which fraud is to be inferred, than a ground, winds per se avoids the contract, Nothing in the evidence enables the court to say that such was the intention of the parties to plaintiffs. They evidently intended to cover the profits they hoped to moke if the cargo reached safely the port of destination. Phillips on Evidence, 306 and 307; 6 Cranch, 220; 5 Ibid, 110 ; 3 Taunton, 506.
[644]*644The second, that there was misrepresenta- . . * tion of the nature of the cargo, appears to us without any foundation. The description given of it in the policy did not restrict any Port,on of it to mules. The high rate of premium paid excludes the idea that information was not given to the insurers of what the cargo should consist. To avoid the contract on this ground, would be to presume fraud, without evidence affording any circumstances on which it could be inferred; again, the de-fence in the court below should have put the plaintiffs on the proof of this fact. But nothing contained in the answer warned them their claim would be contested on that ground.
The third, fourth, fifth, sixth, and seventh points will be considered together, as they all depend on the proper meaning to be attached to the words used at the foot of the policy: “ Mules on or under deck, against stranding or a total loss.”
ft has been urged on the part of the plaintiffs, that mules are not memorandum articles. They are certainly not generally considered such, but there is nothing which prevente [645]*645them from being made so by the stipulations „ , . ", , . . , * of the parties, and we think there can be no doubt that they were intended" to be made subject to the same rules by this policy. We can conceive no reason for inserting the clause, unless something else was intended than the .responsibility created by the policy ifs its usual form. The words used in relation to the articles of the memorandum, free from average, unless general, are convertible terms, *• with responsible for a iota! loss or at least the latter words are as strongly restrictive as the former.
Many cases have been brought before the court, in which courts of justice have given a construction to the expressions used in policies, in relation to memorandum articles. On several of these it seems to have been considered, that there must be a loss of the whole of the thing insured, to enable the as-surer to recover; that if any part of the thing protected by the policy reach the port of destination, the insurers were not responsible. In others, it has been held that where the cargo consisted of separate and distinct objects, a total loss of any part of It would enable the assured to demand the value of [646]*646the object so destroyed. Phillips on Insurance, 488 to 491; 1 Wheaton, 219; 6 Massachusetts, 119; 7 Johnson, 527; 15 East, 559; 7 Taunton, 154.
The weight of authority appears to us nearly alike. We therefore feel at liberty to adopt (fiat construction which will best meet the intention of the parties; for unless there be some technical principle of law which stands in our way, the obligation is imperative on us to do so.
It has been contended with great force, that the decisions of those court which have held that a total loss of any part, was a total loss, within the meaning of the policy were contrary to reason, and the very meaning of the words used; that such doctrine was confounding a partial with an entire loss; that the former was confessedly excluded from the risk, and yet the insurers, by a change of terms, were made responsible-for it; that a part was less than the whole; and that the loss of the whole yvas only insured against.
This reasoning would be unanswerable, if by the expressions a total loss, were necessarily meant a loss of the whole cargo, insured. But we do not understand, that in relation to [647]*647this contract, these expressions are convertí-ble.
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Porter, J.,
delivered the opinion of the ... court. 1 his action is brought on a valued policy oi insurance. I he plaintiffs claim the whole amount. The defendants pleaded the general issue. The cause was submitted to [641]*641a iury. who found a verdict for llie petitioners for 4,500. Both parties appealed. ..
The policy is in the usual form, and contains at the bottom, the common list, of memorandum articles. Underneath this enumeration there is written:
“ This insurance is declared to be on cargo, valued at $11,000.
“ Mules on and under deck against stranding or a total loss.”
The defendants and appellants have madc-in this court, the following points:
1. The valuation of the cargo, made by the plaintiffs was erroneous, extravagant and void. Phill/ps on Insurance* 300, and 307.
2. The risk insured against was not full) and fairly represented by the . plaintiffs. Ibid. 80 to 83.
3. The constructive total loss is excluded in all memorandum articles. Parke, 112, 113, to 115; Phillips, 483 arid 488; 8 Cranch, 39, and 46 to 50 ; 1 Wheaton, 219, and 224 to 232 ; 2 Maule & Selwyn, 371 to 375.
4. Tt»e loss insured against, even if the insurance had been in the body of the policy, was an absolute, aiturMy:jor.:;pljysical Total [642]*642loss, not a legal, technical, or constructive ° total loss. Marshall, 414, chap. 13; Phillips, 382, 383, 489, 490, and 491 ; 6 Massachusetts, 465 and 471; 7 Johnson, 527.
5- ln the construction of a policy of insurance, the written controls the printed part; and in the present policy the risk insured against is specified in writing. Phillips, 18 and 70; 4 East, 130, 135, and 140.
6. The destruction, or physical total loss of a part of the cargo insured, if it consist of memorandum articles, or articles insured against total loss only, does not amount to a total loss, so as to enable the assured to recover for the part so lost or destroyed. 1 Wheaton, 219; 7 Common Law Rep., 39 to 43; 3 Ibid. 127.
7. In case of a total loss, the valuation fixed in the policy remains, unless overrated, but a partial loss opens the policy, and the value of the thing lost must be proved. Phillips, 305 and 313; Park, 111; Marshall, 203.
8. The case ought not to be remanded, inasmuch as it is admitted the vessel arrived at her port of destination with part of the cargo.
[643]*643The first objection is, that the ,cargo was , , , „ . . , , overvalued. Arguments or tins kind come with a bad grace from underwriters, if there was no intention to defraud them. They re-reive a premium for the whole amount stipu-lau'd iti the policy, and are benefited pro tanto ; they should therefore bear the loss, if th.e contract was in good faith. If indeed, it appeared that the value given to the articles put oil board was to enable the insured to profit, by destroying the property protected by the insurance, the contract would be avoided. But, apart from these considerations. we can see no reason on which the policy should be annulled, from the mere fact of the articles insured being valued too high; it rather affords an argument in case of total loss, from which fraud is to be inferred, than a ground, winds per se avoids the contract, Nothing in the evidence enables the court to say that such was the intention of the parties to plaintiffs. They evidently intended to cover the profits they hoped to moke if the cargo reached safely the port of destination. Phillips on Evidence, 306 and 307; 6 Cranch, 220; 5 Ibid, 110 ; 3 Taunton, 506.
[644]*644The second, that there was misrepresenta- . . * tion of the nature of the cargo, appears to us without any foundation. The description given of it in the policy did not restrict any Port,on of it to mules. The high rate of premium paid excludes the idea that information was not given to the insurers of what the cargo should consist. To avoid the contract on this ground, would be to presume fraud, without evidence affording any circumstances on which it could be inferred; again, the de-fence in the court below should have put the plaintiffs on the proof of this fact. But nothing contained in the answer warned them their claim would be contested on that ground.
The third, fourth, fifth, sixth, and seventh points will be considered together, as they all depend on the proper meaning to be attached to the words used at the foot of the policy: “ Mules on or under deck, against stranding or a total loss.”
ft has been urged on the part of the plaintiffs, that mules are not memorandum articles. They are certainly not generally considered such, but there is nothing which prevente [645]*645them from being made so by the stipulations „ , . ", , . . , * of the parties, and we think there can be no doubt that they were intended" to be made subject to the same rules by this policy. We can conceive no reason for inserting the clause, unless something else was intended than the .responsibility created by the policy ifs its usual form. The words used in relation to the articles of the memorandum, free from average, unless general, are convertible terms, *• with responsible for a iota! loss or at least the latter words are as strongly restrictive as the former.
Many cases have been brought before the court, in which courts of justice have given a construction to the expressions used in policies, in relation to memorandum articles. On several of these it seems to have been considered, that there must be a loss of the whole of the thing insured, to enable the as-surer to recover; that if any part of the thing protected by the policy reach the port of destination, the insurers were not responsible. In others, it has been held that where the cargo consisted of separate and distinct objects, a total loss of any part of It would enable the assured to demand the value of [646]*646the object so destroyed. Phillips on Insurance, 488 to 491; 1 Wheaton, 219; 6 Massachusetts, 119; 7 Johnson, 527; 15 East, 559; 7 Taunton, 154.
The weight of authority appears to us nearly alike. We therefore feel at liberty to adopt (fiat construction which will best meet the intention of the parties; for unless there be some technical principle of law which stands in our way, the obligation is imperative on us to do so.
It has been contended with great force, that the decisions of those court which have held that a total loss of any part, was a total loss, within the meaning of the policy were contrary to reason, and the very meaning of the words used; that such doctrine was confounding a partial with an entire loss; that the former was confessedly excluded from the risk, and yet the insurers, by a change of terms, were made responsible-for it; that a part was less than the whole; and that the loss of the whole yvas only insured against.
This reasoning would be unanswerable, if by the expressions a total loss, were necessarily meant a loss of the whole cargo, insured. But we do not understand, that in relation to [647]*647this contract, these expressions are convertí-ble. When used in relation to articles, other than those styled memorandum, or in relation to which a special agreement has not been made, we know that a loss oí' the one half, is considered in la tv a total loss. We know no reason why they' should not be restrained in the stipulation bei’ore us, to what was the intention of the parties. The memorandum was introduced into policies, in consequence of the peculiar tendency of certain articles to decay. Now. in relation toa cargo, made up of distinct and separate objects, which the parties intended to place under the same rules, if their object was not to render the assurers responsible for any deterioration in the value, but for the absolute destruction of the thing insured, the words “ total loss5’ would be as readily resorted to, to express that distinction as any other.
The evidence lias satisfied us beyond doubt, that such was the intention of the parties to this contract. W e do not believe that the premium would have been paid, if the condition had been understood by the insured to be, that if only one out of all the mules he put on board, reached the port of destina[648]*648tion, he was to sustain the loss. The obiect . oi this clause, it appears to us, was to prevent the insurers from being responsible for any injury short of absolute destruction of the moles.
Morse for the plaintiffs, Eusiis for the defendants.
According to these principles, the insurers were only responsible for the mules that perished before the port of destination was reached. As the policy, therefore, is opened by a loss less than the whole, we had doubted whether the verdict was not for a larger stun than the law would sanction; but, according to the latest cases, in adjusting the loss on a valued policy, the practice seems to be, that the amount of injury sustained by a loss of the part, is made in reference to the valuation of the whole in the policy. This course is certainly the most equitable, where the agreement, in its origin, was free from fraud. The jury do not seem to have erred. Phillips on Insurance,p. 313—319.
It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.