Ludlow v. Columbian Insurance

1 Johns. 335

• Court: New York Supreme Court
• Decided: May 15, 1806
• Status: Published

Opinion

Per Curiam.

There was not sufficient proof in this case of a loss or deterioration of the goods to more than half their value, in order to entitle the plaintiff to recover for a total loss. The only evidence of any loss or damage, is the result of the sale of the goods at Occacoke, which ought not to be the criterion ; since it was made without any previous survey of the goods, or any inspection or disclosure whatever, of the extent of the damage. Yet the consignee was present, and the goods were in safe keeping twelve days before the sale, so that they might have been thoroughly examined. The case is not free from suspicion of fraud, arising from the conduct of the consignee in forcing the sale of the goods, and becoming the purchaser of a great part of them, at an enormous discount. If it be alleged that the loss was total m a technical sense, irom the inabiiir , , , • „ , , bv °f the vessel to transport the goods to Nexvbern, the contrary is proved, for, it appears that the consignee, who was the purchaser, had the goods transported, immediately after the sale, to Newbern, without any difficulty, where he sold them for his own benefit, but for how much, does not appear. Carrying goods from the beach up to Newbern, by lighters, does not appear to be unusual or improper, and Occacoke bar may be considered as the mouth of the harbour. We are clearly of opinion that the plaintiff has not made out a case of total loss, and that the verdict must be set aside with costs to abide the event of the suit.

New trial granted.