The opinion of the court was delivered, November 21st 1867, by
Strong, J.
The plaintiffs in the court below sued upon a contract of insurance, the evidence of which was an entry in the marine docket of the defendants as follows: “No. 6570,1865, [264]*264June 23d. William H. Churchill for account, &e., on steamboat River Queen, $6000. Total insurance inclusive, $12,000, against fire only, while finishing at the wharf at Pittsburg, Pennsylvania. Rate £ per cent, per month from June 23d 1865.”
Afterwards the following entry was made : “ August 1st 1865. Loss, if any, payable to Robinson, Rea & Co. for benefit of creditors.” “ Burnt September 10th 1865.” No policy was ever issued. At the time when the first entry was made there was an existing insurance for the same amount, effected in the same manner, in the office of the Citizens’ Insurance Company. Subsequently, to wit, on the 20th of July 1865, there was a similar insurance for a like amount made in the office of the Monongahela Insurance Company. All these insurances were effected through Captain Atkinson, who had been acting as agent for the Citizens’ Insurance Company. There having been no policy issued, and nothing more than the memorandum above quoted entered upon the docket of the insurers,' the contract is to be regarded as made upon the terms and subject to the conditions contained in the ordinary form of policies used by the company at the time. Whether the contract in this case was one of marine insurance or of fire insurance, it is not necessary at this stage of our remarks to determine. The company was authorized to issue policies of both descriptions, and alike in the customary forms of both, it was made the duty of an assured to notify the insurers of any insurance subsequently obtained elsewhere, on penalty of forfeiting all right to recover against this company. In fire policies such notice was required to be given with reasonable diligence, and endorsed upon the policy, or otherwise acknowledged in writing by the company. In marine policies the form required the notice to be given at the office of the company, and that the same be approved and endorsed upon the policy by the secretary or other authorized officer of the company. As the defendants in fact issued no policy in either form in this case, literal compliance with the conditions was impossible. But it was doubtless incumbent upon the plaintiffs to show either that notice of the subsequent insurance in the Monongahela Insurance Company was given, or that these defendants had in some way dispensed with it. Qn the trial the plaintiffs accepted this obligation, and called as a witness Captain Atkinson, who, after testifying that he was an agent for the Citizens’ Insurance Company in 1865, that he effected the three insurances of the steamboat, that he could not say whether he notified these defendants of the risk in the Citizens’, or that he notified them of the risk when he took it in the Monongahela, added, “ it was my custom to do so to avert any future trouble.” He was then asked “ Whether it was his custom to do so in a case like the present, viz., where he had effected an insurance in one office, [265]*265and subsequently a new or additional risk in another ? To this question the defendants objected, but the court allowed it to be put, and sealed a bill of exceptions.
The witness then proceeded to testify that such was his custom, that he was always careful to have everything of this kind attended to, so that there would be no trouble afterwards, though he could not say whether in this particular instance he notified the Eureka office of the subsequent risk in the Monongahela.
In Schoneman v. Fegely, 2 Harris 376, it appeared that in the court below a witness had testified that he did not know whether he gave a receipt for the amount of a note received by him. He was then asked, “ Hid you not usually give receipts for notes received ?” The question was overruled, and on removal of the case to this court, Bell, J., said, “the fact sought to be established could not be proved by evidence of a general practice after the witness had disclaimed knowledge in the particular instance.” He added, however, “ that if any error was committed (in rejecting the question), it.was cured by something else in the trial.” This, though an intimation, ought not to be considered of much authority. It is evident that the matter was regarded of no importance, as in truth it was in that case. No reasons were given for Judge Bell’s remark and no authority in support of it was cited. We think it not uncommon in practice to corroborate the defective memory of a witness by proof of what was his habit in similar circumstances. Thus a subscribing witness to a will or a bond, if unable to recollect whether he saw the testator or obligor sign the instrument, or heard it acknowledged, is often permitted to testify to his own habit, never to sign as a witness, without seeing the party sign whose signature he attests or hearing that signature acknowledged. And it seems to be persuasive and legitimate supporting evidence.
The difficulty in this ease is that the witness, when asked the question, had given very little, if any, evidence tending to show notice of the additional insurance in the Monongahela, and hence, to say the least, it is doubtful whether there was anything to be corroborated by an answer to the question propounded. And were it not for what was subsequently proved, we should probably feel it our duty to sustain the exception. But it was testified by another witness that on the very day when the new risk was taken by the Monongahela, the defendants acquired knowledge of it in some way. A person in their office habitually, and left in charge of the office in the absence of the secretary, a person who testified that he did receive notices of additional insurance, on that day told the sheriff, who applied for other insurance, that the Biver Queen was already insured in three offices, $6000 in each. It is true that when this' clerk afterwards came to testify for the defendants, he stated that he acquired this knowledge from the Citizens’ [266]*266company and not from the assured. This was not until after the plaintiffs had closed in chief. As the case stood at that time, we think the answer of Captain Atkinson to the question put to him •was corroborative of an inference fairly to be drawn from the testimony of the sheriff that the defendants having knowledge of new risk taken, had acquired it from the assured. If so, though the question may not have been admissible when it was proposed, the answer to it became proper evidence before the plaintiffs closed their case. At all events the error, if any, is not sufficiently manifest to justify us in reversing the judgment because of this exception, especially as it is quite plain compliance with the condition to give notice was waived, if the evidence is to be believed, and, therefore, the answer given by the witness became immaterial. .
The 2d exception grew out of the following state of facts. The defendants called Robert Finney, their secretary, who, after stating that he personally never had any notice of any additional insurance in the Monongahela, and that the company had no notice, so far as he knew, until after the loss occurred, was asked whether “ as executive officer of the company he would have consented to an additional insurance of $6000 in the Monongahela, or any other company, and if not, why ?” The question was objected to and overruled, the defendants excepting. What was sought from the witness was the opinion entertained by him at the time of the trial, and his reasons for that opinion.
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The opinion of the court was delivered, November 21st 1867, by
Strong, J.
The plaintiffs in the court below sued upon a contract of insurance, the evidence of which was an entry in the marine docket of the defendants as follows: “No. 6570,1865, [264]*264June 23d. William H. Churchill for account, &e., on steamboat River Queen, $6000. Total insurance inclusive, $12,000, against fire only, while finishing at the wharf at Pittsburg, Pennsylvania. Rate £ per cent, per month from June 23d 1865.”
Afterwards the following entry was made : “ August 1st 1865. Loss, if any, payable to Robinson, Rea & Co. for benefit of creditors.” “ Burnt September 10th 1865.” No policy was ever issued. At the time when the first entry was made there was an existing insurance for the same amount, effected in the same manner, in the office of the Citizens’ Insurance Company. Subsequently, to wit, on the 20th of July 1865, there was a similar insurance for a like amount made in the office of the Monongahela Insurance Company. All these insurances were effected through Captain Atkinson, who had been acting as agent for the Citizens’ Insurance Company. There having been no policy issued, and nothing more than the memorandum above quoted entered upon the docket of the insurers,' the contract is to be regarded as made upon the terms and subject to the conditions contained in the ordinary form of policies used by the company at the time. Whether the contract in this case was one of marine insurance or of fire insurance, it is not necessary at this stage of our remarks to determine. The company was authorized to issue policies of both descriptions, and alike in the customary forms of both, it was made the duty of an assured to notify the insurers of any insurance subsequently obtained elsewhere, on penalty of forfeiting all right to recover against this company. In fire policies such notice was required to be given with reasonable diligence, and endorsed upon the policy, or otherwise acknowledged in writing by the company. In marine policies the form required the notice to be given at the office of the company, and that the same be approved and endorsed upon the policy by the secretary or other authorized officer of the company. As the defendants in fact issued no policy in either form in this case, literal compliance with the conditions was impossible. But it was doubtless incumbent upon the plaintiffs to show either that notice of the subsequent insurance in the Monongahela Insurance Company was given, or that these defendants had in some way dispensed with it. Qn the trial the plaintiffs accepted this obligation, and called as a witness Captain Atkinson, who, after testifying that he was an agent for the Citizens’ Insurance Company in 1865, that he effected the three insurances of the steamboat, that he could not say whether he notified these defendants of the risk in the Citizens’, or that he notified them of the risk when he took it in the Monongahela, added, “ it was my custom to do so to avert any future trouble.” He was then asked “ Whether it was his custom to do so in a case like the present, viz., where he had effected an insurance in one office, [265]*265and subsequently a new or additional risk in another ? To this question the defendants objected, but the court allowed it to be put, and sealed a bill of exceptions.
The witness then proceeded to testify that such was his custom, that he was always careful to have everything of this kind attended to, so that there would be no trouble afterwards, though he could not say whether in this particular instance he notified the Eureka office of the subsequent risk in the Monongahela.
In Schoneman v. Fegely, 2 Harris 376, it appeared that in the court below a witness had testified that he did not know whether he gave a receipt for the amount of a note received by him. He was then asked, “ Hid you not usually give receipts for notes received ?” The question was overruled, and on removal of the case to this court, Bell, J., said, “the fact sought to be established could not be proved by evidence of a general practice after the witness had disclaimed knowledge in the particular instance.” He added, however, “ that if any error was committed (in rejecting the question), it.was cured by something else in the trial.” This, though an intimation, ought not to be considered of much authority. It is evident that the matter was regarded of no importance, as in truth it was in that case. No reasons were given for Judge Bell’s remark and no authority in support of it was cited. We think it not uncommon in practice to corroborate the defective memory of a witness by proof of what was his habit in similar circumstances. Thus a subscribing witness to a will or a bond, if unable to recollect whether he saw the testator or obligor sign the instrument, or heard it acknowledged, is often permitted to testify to his own habit, never to sign as a witness, without seeing the party sign whose signature he attests or hearing that signature acknowledged. And it seems to be persuasive and legitimate supporting evidence.
The difficulty in this ease is that the witness, when asked the question, had given very little, if any, evidence tending to show notice of the additional insurance in the Monongahela, and hence, to say the least, it is doubtful whether there was anything to be corroborated by an answer to the question propounded. And were it not for what was subsequently proved, we should probably feel it our duty to sustain the exception. But it was testified by another witness that on the very day when the new risk was taken by the Monongahela, the defendants acquired knowledge of it in some way. A person in their office habitually, and left in charge of the office in the absence of the secretary, a person who testified that he did receive notices of additional insurance, on that day told the sheriff, who applied for other insurance, that the Biver Queen was already insured in three offices, $6000 in each. It is true that when this' clerk afterwards came to testify for the defendants, he stated that he acquired this knowledge from the Citizens’ [266]*266company and not from the assured. This was not until after the plaintiffs had closed in chief. As the case stood at that time, we think the answer of Captain Atkinson to the question put to him •was corroborative of an inference fairly to be drawn from the testimony of the sheriff that the defendants having knowledge of new risk taken, had acquired it from the assured. If so, though the question may not have been admissible when it was proposed, the answer to it became proper evidence before the plaintiffs closed their case. At all events the error, if any, is not sufficiently manifest to justify us in reversing the judgment because of this exception, especially as it is quite plain compliance with the condition to give notice was waived, if the evidence is to be believed, and, therefore, the answer given by the witness became immaterial. .
The 2d exception grew out of the following state of facts. The defendants called Robert Finney, their secretary, who, after stating that he personally never had any notice of any additional insurance in the Monongahela, and that the company had no notice, so far as he knew, until after the loss occurred, was asked whether “ as executive officer of the company he would have consented to an additional insurance of $6000 in the Monongahela, or any other company, and if not, why ?” The question was objected to and overruled, the defendants excepting. What was sought from the witness was the opinion entertained by him at the time of the trial, and his reasons for that opinion. It is not perceived upon what principle this should have been admitted. Had the inquiry been after facts existing when the new insurance was taken, facts that rendered it improbable consent would have been given, a different question would have been presented.
The 3d, 4th and 5th exceptions may be considered in connection with each other. They relate to evidence offered by the defendants and rejected by the court, for the purpose of showing that the steamboat belonged in part, at least, to William C. Champlin, and that he had wilfully caused the fire. The purpose was quite legitimate, but the evidence offered had no tendency, so far as we can see, to establish that Champlin had any ownership of the boat. Certainly no legitimate inference of such ownership can be drawn from Champlin’s own declarations whether in writing or not. So far from the fact that the memorandum of insurance in the Citizens’ Insurance Company and the transfer signed “For the boat and owner William C. Champlin,” proved an acknowledgment of property in him by the plaintiff, the fair inference from it, if any can be drawn, is directly the contrary. These exceptions are, therefore, not sustained.
The 6th, 7th and 11th assignments of error are founded upon exceptions to the charge of the court. It is insisted that in the instruction given to the jury the court misled them by confounding [267]*267mere knowledge by the defendants of additional insurance, no matter how acquired, with that notice which the assured was under obligations to give. Had the contract been evidenced by a policy actually issued, we have seen its conditions would have required that notice should be given to the company of any additional insurance, and that the same should be approved and endorsed on the policy, or otherwise acknowledged in writing. The approval and endorsement of approval in the manner stated were rendered impossible by the failure of the company to make out a policy. And if they would avail themselves of the want of complete performance of a condition existing only for their benefit, it was their duty to make complete performance possible, or at least, by no act or default of their own, interpose obstacles in the way of performance. Hence, nothing more was required by this contract than notice, perhaps notice at the office of the company. Certainly this is so, if it is to be regarded a contract of marine insurance. It is true the form for a fire policy required notice of other insurances to be given by the assured and endorsed on the policy “ or otherwise acknowledged in writing by the company.”
If, then, this is to he treated as a contract of fire insurance, and if it is, as contended, the duty of an insured to .procure the endorsement of notice on the policy or other written acknowledgment, he has an option of which the insurers cannot deprive him by withholding a policy. We repeat, therefore, that all the defendants had a right to under the condition we are now considering, was notice of additional insurance and perhaps, if it was a marine contract, notice at the office of the company. To such notice they had a right.
Let it be conceded, now, that mere knowledge of the defendants that other insurance had been effected in the office of the Monongahela Insurance Company was not the notice demanded, nor equivalent to it, the court did not instruct the jury that it was. Neither in the answer to the plaintiff’s 3d and 4th points, nor in that portion of the general charge to which exception is taken, is any such doctrine to be found. This will be readily seen by reference to the points themselves, especially the 3d, which the court affirmed. The point was, “ that if the jury believe from the evidence that prior to and at the time of making the contract of August 1st 1865, whereby the loss was made payable to the plaintiffs for the benefit of the creditors, the defendants had actual knowledge of the additional insurance in the Monongahela office, they cannot set up such additional insurance to defeat a recovery by the plaintiff.”
The point and the answer had reference not to the identity in-effect of knowlédge and notice, but to the effect of the new contract of August 1st, made with knowledge of the new insurance.[268]*268So also the answer to the 4th point, and the general remarks referred to in the charge. Now, if it be, as has often been decided, that such a condition in a policy, introduced as it is for the benefit of the insurers, is waived when they, with full knowledge that other insurance has been obtained, continue to treat the contract as existing in force, it was right to instruct the jury that after the 1st of August 1865, it was not permissible for these defendants to set up in discharge ,of their undertaking, that notice had not been given to them of the new risk taken in the Monongahela office. It was not that knowledge was equivalent to notice, but that knowledge followed by acts that amounted to a subsequent recognition of the contract as still in force dispensed with the necessity of proving notice.
On the 1st of August 1865, if no notice had been given of the Monongahela office insurance, the contract of these defendants was at their mercy. They might have treated it as null and void. But on that day they recognised it as in continued force, by promising to pay the loss, if any, to the plaintiffs, receiving from them an undertaking to pay the premium. If at that time they knew that $6000 had been insured in another office, though they had received no formal notice of it, their act amounted to consent that failure to give it should not avoid the contract. This is in substance what was said by the learned judge of the court below, and we think correctly. These assignments of error are therefore not sustained.
The remarks just made are sufficient to indicate why we think there is no foundation for the 8th and 10th assignments. If what we have said be correct, it would have been a mistake to withdraw the case from the jury, because there had been no sufficient evidence of the notice and assent originally required by the terms of the contract.
The only remaining assignment raises the question whether the defendants were entitled to credit for a part of what is called salvage. After the fire by which the boat was destroyed, under legal process set in motion by the creditors of the owners, the remnants of the boat were sold, and the proceeds of sale ($6878. 76) were paid into the District Court. It is with one-third of this sum that the defendants claim they ought to be credited, one-third only, because the aggregate of insurance by themselves, the Citizens’ and the Monongahela companies was $18,000. It is not denied that the loss exceeds the sum total of all the insurances, but it is said as the plaintiffs hold the contract for creditors of the owners, they can recover no more than a sum sufficient with what the creditors have realized from the sale of the remnants, to pay the debts due them, and therefore the sum paid into court is to be taken into consideration. It is said the claims of the creditors amount to no more than about $14,000, and hence no [269]*269more than the excess of that sum over 6878.76 can he recovered on all the three contracts of insurance. This, if it has any foundation, must rest upon the assumption that, by the agreement of August 1st 1865, only the creditors’ interests were insured ; that it was not only a new contract, but a substitute for the original contract of insurance. But this is a mistake. What the company undertook on the 1st of August was to pay the loss on the boat, not merely the loss sustained by the creditors from its destruction. The subject of the insurance remained unchanged, and so did the stipulated premium. Whether the creditors were paid or not, therefore, the duty of the defendants was to pay the loss on the boat so far as the sum insured by them reaches.
Again, it is said the contract was one of marine insurance, and therefore the loss being a constructive total one, the insurers are entitled to the salvage. Undoubtedly, it is a rule in marine insurance, in eases of total loss and abandonment, if the salvage or any part of it has been received by the assured, or applied to his use, the value of what has thus been received or applied, is to be deducted in adjusting the amount to be recovered from the underwriters, for they pay the value of the subject as agreed upon in the policy. This results from the general principle that a contract of insurance is one of strict indemnity. But if in such a case as this, when the insurance is only partial (that of the defendants being for $6000, and the total in three offices $18,000, while the value of the steamboat at the time of the loss was not less than $25,000), the contract would not be one of indemnity if the insurers can deduct anything on account of the salvage. And no authority justifies such a deduction. The rule as cited from Phillips on Insurance, and Parsons on Contracts, is a rule for another class of cases. It applies only when there has been an abandonment, or the whole value has been insured. It would be strange indemnity in a case of insurance of $10,-000 on a ship valued at $20,000 or worth that sum, if on a loss by the perils insured against of $11,000, the salvage of $9000 can be deducted from the $10,000 insured, and thus the insurers be held liable for only $1000. But this is not a case of marine insurance. The fact that the memorandum was entered in the defendants’ marine docket does not determine the nature of the contract. The risk taken was a finishing risk on a steamer at a landing, and it was taken against fire only. True, fire is one of the perils that may be insured against in a marine policy. But when the hazard is fire alone, and the subject is an unfinished vessel never afloat for a voyage, and therefore not properly the subject of marine insurance, the contract to insure must be regarded as a fire risk, certainly in the absence of an express agreement that it shall have the incidents of a marine policy. If, then, the con[270]*270tract of the defendants was one of fire insurance, there-can be no question respecting the salvage in this case.
The judgment is affirmed.