
    Livingston against Delafield.
    policy^finsuranee, the broker stated to the insurers that the vessel was expected to sail the latter end of September or the beginning of October. On the morning of the day on which the policy was effected, a vessel arrived, bringing information that tlip vessel insured had sailed about the 3d of October, which news was not communicated by the insurers. The court refused to grant a new trial on the ground of its being a concealmentof a material fact, after the verdict of a second jury in favour of the plaintiff. . A written order for insurance was laid before the insurers by the broker, who at tire same time, verbally communicated to them the facts said to be contained in the order. It was held,thatthc broker might give evidence of his verbal communication, without producing the order itself-
    THIS was an action on a policy of insurance cm- the ship T/z'zíí, at and from Jamaica to New-Tork, valued at 8000 dollars. The cause was tried at the Nexv-York sittings, the 19th December, 1805, before Mr. Justice Livingston.
    
    The Eliza was a British vessel, and sailed from Jamaica the 25th September, 1801, on her voyage to New-York, and foundered at sea in a gale ef wind on the 25th October. The policy, interest and abandonment were admitted. The policy in question, was opened on the 16th November, by the broker, at a premium of 6 per cent, and 2000 dollars were underwritten, being all that was then ordered. The policy was again opened on the 18th November, about 12 o’clock, when the defendant and two other insurers subscribed, and another was about to subscribe, when the news of the loss of the vessel was announced. The order for insurance was given to the broker, by the agent of the plaintiff, who, about 10 o’clock in the morning of the 18th November, was advised by the broker to have a larger sum insured, as the vessel would soon be considered as out of time and he then re* quested the broker to get 3000 dollars more insured. It appeared that a vessel had arrived on the morning of the 18th November, in 35 days from Jamaica, the captain of which informed the agent of the plaintiff, that the Eliza had sailed from Jamaica about the 3d of October, but could give no further information concerning her. The broker b.ing called as a witness, swore, that he received a written order for the insurance, from the agent of the plaintiff, mentioning the time of the vessel’s sailing, which was shown to the underwriters who subscribed the policy on the 16th, and also to those who subscribed on the 18th November. Tha¿ he delivered this order, with the other preliminary proofs, to the defendant,' who soon after returned them to the witness, who delivered them, a day or two after, to the agent of Tie plaintiff, but he did not examine the papers when they were so returned, to see if the order was among them ; though he had since examined them, but could not find it. He said that it was usual to entrust the papers with the insurers, and that.they were generally returned all together. Notice had been given, on the part of the plaintiff, to the defendant to produce the order ; but on its being called fon. ■ c^en^ec^ that it vc as in his possession. The plaintiff’s counsel then asked the witness to state the contents of the written order ; but this was objected to on the part of the defendant, and- overruled by the judge. The witness was then asked, whether he did not communicate verbally to the underwriters, what was contained in the written order ? This being objected to, the judge ruled that thé witness might answer as to any verbal communications to the defendant, concerning the time of the vessel’s sailing, though it had been reduced to writing and shown to them. The witness then said, that he always laid before the underwriters the order of insurance with the policy; that some looked at them, and some of them did not; that they frequently asked him, as to the contents of the Order, and he answered them according to the order ; that he had no doubt that he had done so in this case, and that he communicated to the underwriters on the 16th November, that the Eliza was expected to sail about the last of September or the beginningof October ; and that he communicated the same information to those who underwrote on the 18th November, because, it was his general practice to communicate ' to them verbally, what was contained in the written order of insurance. The premium was an ordinary premium for a vessel not out of time. The agent of the plaintiff did not mention to the broker the- fact, that a vessel had arrived on the morning of the 18th November, bringing information that the Eliza sailed about the 3d October, nor was that fact communicated to the underwriters. It appeared, from the evidence of the broker, and several insurers, who were examined, that a vessel which has been out from Jamaica 45 days, would be considered as out of time, and a higher premium than ordinary, would be demanded in such case. Other witnesses testified, that, generally speaking, a vessel which has been out from Jamaica 45 days; would be considered out of time, but that it often depended on the course of the winds, and of voyages during the season ; that different Insurers made Very different calculations as to premiums, according to their different views of circumstances. It appeared that from the 1st to the 19th of No-
      
      member, different vessels had arrived at Nezv-York from Ja7 maica, with various passages, irom 29 to 45 days.
    The judge charged the jury, that it was the duty ofthe agent of the plaintiffs, to have communicated to the underWriters, on the 18th November, the information brought by the vessel which had arrived that morning, as to the time when the Eliza sailed; but that the materiality of such communication, was a question of fact, which the jury were to determine. The jury found a verdict for the plaintiff.
    A motion was now made to set aside the verdict, and for a new trial, on the following grounds. 1. That the testimony of the broker that he communicated to the defendant, which was contained in a written paper, was incompetent and inadmissible, as the paper was not produced, nor proved to-be in the possession of the defendant. 2. That the material information received by the agent of the plaintiff, was concealed and not communicated to the defendant. 3. That the verdict was against evidence.
    
      Harison, for the defendant.
    1. The testimony permitted to be given by the broker in this case, is against the estábil ished rules of evidence. He did not pretend to recollect any thing, but what was contained in the written order for insurance. The papers had been returned by the defendant to the plaintiff, in the usual course of business, and it was» therefore, a fair presumption that the order in question had been returned and was in possession of the plaintiff’s agent, or at least, that it was not in the possession of the defendant. Any parol evidence of its contents, was, therefore, inadmissible, and was properly overruled by the judge. For if the witness he allowed to state his verbal communications of that order, when his recollection is entirely founded on the perusal ofthe order itself, it amounts precisely to the same thing as giving parol evidence of the contents of a written paper, in the possession of the plaintiff himself, and which ought to have been produced. The witness states his recollection, too, with some doubt, as derived, rather from, the course of his business, than from actual knowledge offdiat took place. In this way, a very salutary and well establishecl rule, that inferior evidence shall not be received, when higher and better .proof, is, in the possession of the party, -will be easily evaded. , : ■ ,
    ■ 2. In contracts of insurance the ^utmost good} faith -is required. Every circumstance in the .knowledge, of the assured, which can in any degree influence the mind of the insurer in determining on the premium, or whether , he shall underwrite, ought to be fully disclosed. For this purpose, no circumstance cart be more material than the time of the vessel’s sailing, This vessel did, in fact, sail on the 25th September ; the information given to the underwriters, was, tliat she. was expected to sail about,the latter end oí September, or beginning of October, : .ypw, in the.morning of the 18th,-•before the defendant underwrote the policy, a vessel had arrived bringing intelligence of her having actually sailed.— The expectation of the time of, a, vessel’s sailing, .which is always uncertain, and generally later than, the day mentioned, wo.uld furnish a- very different ground of calculation to the insurer, than a positive knowledge that she had sailed on a.particular day. The, information which has .been withheld, is clearly material; and when connected with the fact ■of the insurance being ordered after it was received, and with, .the other suspicious circumstances in this case, the jurv were bound to find a verdict for the defendant. The materiality/of .a communication ought not to be considered as a mere question of fact. The jury have exceeded, the bounds of reasonable discretion in deciding that it was not material, and against all the, evidence before.them. It is, therefore, a case very strongly entitled to the interposition ofthe court, in the exercise of their powers in, granting new .trials, and to prevent that injustice which, ,may, be done by the erroneous .or precipitate decisions of jpyies*,-;-, , , ,
    Johnson, contra-
    1 - The true object, of inquiry was, what information had been given to the defendant, as tó the time, of..the vessel’s sailing, that might, influence his mind in adjusting the terms of the contract..If the broker did ver,bally communicate the fact, such conunumcation, was alto, .gether. independent of the written order,, and it was proper -for the witness to state it. If the defendant -wished to show that the verbal communication varied from the written order, or if he wished to avail himself of that writing, he ought to have given notice to the plaintiff to produce it. No rule of evidence has been violated in this case. To give parol evidence of a verbal order, made at the same time with a written order, is not giving parol evidence of the contents of a written paper. They are contemporaneous, but distinct communications, though they may be of the same nature. To allow proof to be given of the one, is not giving evidence of the other.
    2. There is no doubt that good faith is essential to every contract; and that it is a vital principle in the contract of insurance. Questions of actual fraud, or of the violation of good faith, are, with great propriety, left to the decision of a jury, who can judge from a full view of every circumstance, unembarrassed by technical or artificial rules. From, ihe testimony in this case, it is evident, that the insurers must have made their calculation on the information, that the vessel was to sail about the first of October. The information alleged to be withheld,' was, that the vessel sailed about the third of October. No particular day was mentioned. Both were substantially the same ; the information concealed does notvary from what was before communicated ; and if it could have had any effect, it would have been to diminish, rather than to increase the premium. Is it the concealment of a fact that the insurer did not know, nor had any opportunity of knowing, nor any reason to suspect ? The arrival of every vessel is regularly entered at the place, where the insurers keep their office, and the fact was as likely to be known to them as to the assured. Here is neither a suggestio falsi nór a suppressio verij unless it be deemed a suppression of' truth, not to communicate information of a fact, already communicated and known to the party. Whether the information received by the agent of the plaintiff, on the-morning of the 18th November, was material; and whether such material circumstance was fraudulently concealed from the defendant, were questions on which it was .the peculiar province of the jury to decide; for they have always been considered as questions of fact, not of law. After two trials in this cause, and two successive verdicts in favour of the plaintiff, will the court now say, that the jury have made an erroneous conclusion from the evidence before them 
    
    
      
      
        Marshall, 348.
      
    
    
      
      
         McAndrew v. Bell, 1 Espinasse, N. P. Cases, 373.
      
    
    
      
       1 New Rep. Bos. & Pull. p. 151. Littledale v. Dixon.
      
    
    
      
       See S. C. 3 Caines, 49.
    
   Per Curiam.

The evidence of the broker, of what he communicated verbally to the defendant, was admissible. It was not evidence of the written order laid before the in-" surers, but of a distinct verbal communication made at the same time; it does not, therefore, come within the rule that parol evidence is not to be given of the contents of a written paper. Whether the information brought by the vessel which arrived on the morning of the 18th November, was a material circumstance, was a question of fact that the jury were to decide. As they have decided upon it, we are not disposed to disturb their verdict, especially, after two juries have said that it was not material.

Judgment for the plaintiff.  