Smith v. Newburyport Marine Insurance

4 Mass. 668

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1808
• Status: Published

Opinion

Parsons, C. J.,

observed, after stating the facts agreed, that the question reserved was simply whether the plaintiffs had, or had not, seasonably abandoned after the knowledge of the peril, so as to entitle them to recover a total loss. They had notice of the loss, and of the nature and extent of it, on the 24th of February ; they lived in the town where the defendants kept their office, but did not offer to abandon until forty-five days after notice of the loss was received ; and no reason is assigned for the delay.

The owner must abandon within a reasonable time after notice He shall not delay for the purposes of speculation, or wait for further intelligence to guide him in his speculations. What is a reasonable time must depend on facts. When the facts are agreed or found, it is a question of law. In the case at bar, the offer to abandon was delayed until the 10th of April. This delay, unaccounted for, is unreasonable ; and the Court are all of opinion that, in not offering to abandon sooner, the plaintiffs lost their right to abandon, and can recover for a partial loss only.

Let commissioners be appointed to liquidate the damages, and let t he cause stand over for their report.