Hayden v. Nevins

8 Bosw. 234

• Court: The Superior Court of New York City
• Decided: June 1, 1861
• Status: Published

Opinion

By the Court—Bosworth, Ch. J.

On the 2d of October, 1852, the plaintiffs, as assignees of Wheeler & Co., became owners of the vessels named in the plaintiffs’ letter of ' October 20, 1852. The defendants’ claim against Wheeler and Co., for the amount of the premium notes given on account of the policy in question, which notes the .defendants had discounted and taken up on the 29th of' September, 1852, was a mere personal demand against Wheeler & Co. The assignees were not personally liable to pay any part of it, and the defendants had no lien upon any part of the assigned property for the payment of it, or any portion of it.

If the assignees, as such, had effected a policy in their own names, the sum insured would have been received by them, unaffected by any claim of the defendants to be reimbursed out of it any part of the premium they had paid.

The request which the plaintiffs made by their letter of October 20,1852, was, that the assurance on the r Metoka should be on then' account from October 2,1852; and they in that letter agreed, on that request being acceded to, “to be accountable for the premium from that time.”

This request was acceded to. The defendants acted upon it, and, before the loss, rendered to the plaintiffs an account, in which they were debited with the premiums" from October 2, 1852.

The plaintiffs had a right to expect, in case of loss, to receive the sum insured free from any deduction for premiums, beyond the sum which they had agreed to pay to have the policy become one on their own account from October 2,1860. Their rights, as between themselves and the defendants, are the same as if a new policy had been obtained for them, for the same sum as that insured by the policy in question, and for the premium charged on defendants’ account of December 1,1852.

Mo question is now made that the moneys received on the policy belong to the plaintiffs, as the owners, at the time of the loss, and from October 2, 1852, of the property insured. The only point, in that regard, relied upon by the defendants, is, that they are entitled to retain the whole sum which they advanced for premiums, and are not restricted to the sum for which the plaintiffs agreed to be accountable, as a part of the contract that the policy should be theirs, and one on their property and their account from October 2, 1852.

As to the necessity of a demand before suit brought, we deem it sufficient to say, that after the defendants had received the moneys, which this suit is brought to recover, they refused to pay such amount thereof as they now claim the right to retain. The fair import of the findings of fact is that the defendants refused to pay all that it Avas their duty to pay. The position they then took, viewed in the light of their subsequent conduct in respect to this matter, shows that their refusal to pay the just balance, was intended to be unconditional and absolute.

The judgment should be affirmed.