
    Abram Block et al. plaintiffs and respondents, vs. The Columbian Insurance Company, defendant and appellant.
    1. The defendant, by an open policy, insured “H. C. & Co. on account of A. B. & Co. (the plaintiffs) and consigned to H. C. & Co. by regular invoice and bill of lading. In case of loss, to be paid to H. C. & Co. at and from San Francisco, via Isthmus, to N. Y. On specie, gold bars &c. * * * laden, or to be laden, on board of steamers sailing from and after July 1, 1862.” Gold bars, the property of the plaintiffs, of the value of $12,000, shipped at San Francisco after July 1, 1862, were consigned to H. C. & Co. by regular invoice and bill of lading, but in the bill of lading S. & Co. were designated as shippers, and N. Bro’s. as consignees.
    
      Held that the gold bars so shipped were covered by the policy; the expression in the policy “ consigned to H. C. & Co. by regular invoice and bill of lading” not demanding the insertion of the name of that firm in the bill of lading, as consignees, in order to cover any shipments.
    2. Held, also, that this construction was strengthened by proof of-the existence of a custom among merchants in San Francisco, when shipping gold in less sums than $30,000, to unite them in one shipment exceeding that amount, taking a bill of lading for the whole in the name of one person, to save charges. That the defendant was charged with knowledge of that custom, and the language of the contract was to be construed in reference to it.
    (Before Robertson, Ch. J. and Garvin and McCunn, JJ.)
    Heard February 6, 1865;
    decided May 27, 1865.
    This was an action on. an open policy of insurance, with a special risk under the same notified to the defendant. At the commencement of such policy partly written and partly printed, “ H. Cohn & Co. on- account of. A. Block & Co. and consigned to H. Cohn & Co. hy regular invoice and bill of lading, in case of loss to be paid to H. Cohn & Co.” did “ make insurance and cause to be insured, lost or not lost, at and from San Francisco via Isthmus to New York, on specie, gold bars, &c. * * laden or to be laden on hoard of .the good sirs, sailing from and after July 1st, 1862.” In the margin of such policy it was declared that the defendants were “ not to be liable for more than $25,000 per any one vessel, at one time, unless otherwise agreed upon at the time of indorsement. Eisks applicable hereto to he reported to this company for .indorsement on the policy, as soon as known to the assured.” The action was brought for a shipment of gold within the time mentioned in the policy, which was lost on a voyage therein described, the news of whose shipment and loss was received by telegram in New York on the same day. Such telegram of the shipment was as follows : “Shipped July 21st under bill of lading of Newstadter Bro’s to Newstadter Bro’s, twelve thousand dollars insured under our policy with Columbian Insurance Company—A. Block & Co.” It was shown as soon as received by a clerk of Messrs. Cohn & Co. to the president of the defendants, who directed such clerk to a clerk of the company, in order to indorse such risk upon the policy; but he only made an entry thereof in their books, in the following words and figures: “August 7, 1862. Golden Gate from San Frsncisco to New York. Treasure $12,000. Rate of premium 1|- per cent, premium $180.”
    The gold in question was shipped at San Francisco by the firm of Newstadter Brothers, of that place, in the name of Levi Strauss & Co., in whose name the bill of lading was taken, to be delivered to Newstadter Bro’s of New York. In addition to a regular invoice, á memorandum of such gold, its weight, value and fineness, directed to Newstadter Bro’s in New York and signed by Newstadter Bro’s of San Francisco, was sent by the next steamer to New York and delivered to Cohn & Co. It was headed “ shipped by the plaintiffs to be delivered to H. Cohn & Co. N. Y.,” and at the foot was written : “ Insured for $12,000. Please deliver as directed above.”
    A custom among merchants in San Francisco, when shipping gold in less sums than $30,000, to unite them in one shipment exceeding that amount, taking a bill of lading for the whole in the name of one person, was proved on the trial. The reason for it was established to be the diminution thereby of shipping charges-, which were greater in proportion, where the sum shipped was less than such standard.
    An exception was taken to the evidence admitted on the trial to prove a declaration by the president of the defendants to the clerk of Cohn & Co. when he called his attention to the variation in the telegram of the shipment from the policy in the names of the shippers and consignees, that it made no difference; and a direction by him to such clerk to have the risk indorsed on the policy by the entry clerk of the defendants, and an entry by the latter of such risk in a book kept by him for that purpose.
    A motion to dismiss the complaint was made and refused on the trial; a verdict was rendered in favor of the plaintiffs, by direction of the court, from the judgment on. which the present appeal is taken.
    
      A. C. Morris, for the appellants, (defendants.)
    I. The policy is what is known to merchants and underwriters as an open policy, and is not confined to any particular voyage or any particular specified risk. It is, by its terms, to cover all shipments from San Francisco to New York of Block & Co.’s gold, between a certain date. All shipments to be reported to the company as soon as the assured, who reside in New York, are advised. Under a policy of this kind, if no restriction is imposed, the company, with reference to premiums, is at the mercy of the assured. If the vessel arrives safe, and no report is made, the company having no means of informing itself of the shipment, would get no premium. In case of disaster, it would be sure to hear of it. It was with reference to this that the defendants inserted in their open policies a clause confining their risks to shipments by regular invoices and bills of lading to persons designated. This enables their open policy clerk to ascertain, upon the arrival of each steamer,, what risks they cover and what premiums they are entitled to, by a mere inspection of the published specie list, which is a transcript from the manifest made up from the bills of lading. The clerk in going over the specie list would never dream that a shipment of $30,000 to News tad ter & Co. covered a shipment to Cohn & Co.
    II. The language of the policy is plain and unambiguous. The words are “ H. Cohn & Co. on account of A. Block & Co., and consigned to H. Cohn & Co., by regular invoice and bill of lading.” Not consigned by the bill of lading to Newstadter Bros, and to Cohn & Co. by an order made secretly on Newstadter Bros., but to Cohn & Co. directly, openly and by the bill of lading itself. Such a secret consignment to Cohn & Co. as was made in this case, was precisely what the clause referred to was intended to protect the company against. Parsons, in speaking of a consignor and consignee in a bill of lading, says : “ The party who ships the goods is called the consignor, and he to whom the goods are to be delivered, by the terms of the bill, is the consignee.” (Parson’s Maritime Law, p. 138.) He is speaking of the consignor and consignee in a regular bill of lading.
    II. Although the testimony shows that the gold belonged to Block & Co., consigned to Cohn & Co., and shipped by a regular invoice and bill of lading, and the interpolation, therefore, of the words “ and shipped,” so as to make the clause read “ on account of Block & Co., consigned to Cohn & Co., and shipped by regular invoice and bill of lading,” would present a case, all the conditions of which have been fulfilled, to render the defendants liable. It cannot be done legally. The interpolation of these words would not only change entirely the sense of what is clear, unambiguous, and has a very obvious and important meaning, as it stands, but would render the clause, so far as concerns the invoice and bill of lading, idle and frivolous. All goods are shipped by regular invoice and bill of lading. It' is not to be supposed that this special written clause was inserted with no other object than to provide for what would be a matter of course without any such provision in the policy. (1 Duer on Ins. 163. Neilson v. Commercial Ins. Co., 3 Duer, 461.)
    IY. The testimony of a witness (Romberg) in regard to a conversation between him and the president of the company, was inadmissible for the purpose of showing any alteration or waiver of any clause, condition or provision in the policy.
    1. The policy specifies fully and clearly the terms, conditions and provisions of the insurance. It is expressed as clearly as language can express it, that the policy shall cover all future indorsements which shall fall within the terms, conditions and provisions of the policy, and none other.
    2. Any agreement between the president of the defendants and the clerk of the plaintiffs for an alteration in the terms "of the insurance, if in tended to affect the policy, should have been in writing. There was no such writing ; on the contrary, a new writing was made' by the direction of the clerk of the plaintiffs, to wit, the indorsement upon the policy, in which not a word is said about changing the terms of the policy so as to cover shipments to Hews tad ter Bros.
    V. Supposing the testimony admissible, it does not show any alteration of the contract, or the waiver of any of its conditions.
    1. There "is ho pretense that the clerk had any authority to do any thing further than to report the loss and have it indorsed upon the policy. He clearly had no authority to enter into a new contract for insurance.
    2. The clerk says he called the attention of the president to the telegram and to the fact that the gold had.been shipped to Hewstadter Bros., and not to Cohn & Co.- direct, and that the president said it made no difference. This was, if any thing, a mere matter of opinion, after the loss had occurred, and the rights of the parties had become fixed. The defendants cannot be affected by a mere matter of opinion of their president! . The opinion of the president, that the company was- liable, could not in itself create such liability. But it does' not appear that the president ever gave such opinion. It does not appear that his attention was called to the policy or its terms. The business of the defendant’s clerk was to indorse the risk, not to discuss the meaning of the policy, and the president may, in the hurry of business, be supposed, when he said “ it made no difference” to have referred to something very different from what the clerk supposed.
    It is erroneous to suppose that the contract of insurance ill such a case is made at the time of the indorsement.- The truth is, that the whole of the contract is in the policy. The assured reports and indorses what he pleases, always subject to the terms and conditions of the policy.
    
      YI. It appeared by the testimony of this same clerk, that in October, 1863, after this suit had been pending nine months, he paid the premium upon this risk, receiving back 15 per cent of it under some general agreement. What he meant was, that the general notes to the company which he paid, included the premium upon this risk.
    
      S. P. Nash, for the respondents, (plaintiffs.)
    I. The bars in question were covered by the policy construed according to its true intent and meaning.
    1. The purpose of the description was merely to identify the property put at risk. All that was really required by it was, that the gold shipped should be accompanied by proper shipping documents, so as to secure the underwriters against fraud—against attempts to cover under the policy, property upon which, unless a loss should occur, the owners did not intend to pay a premium. The transaction in question met all these requirements. There was an invoice identifying the bars by numbers, weight and value, specifying the drafts drawn against the shipment, the ownership of the bars by the plaintiffs, and the shipment of them through Newstadter Bros, (in treasure box No. 10;) and stating that they were considered as insured with the defendants. This invoice accompanied the shipment, and served every purpose of identification, and Newstadter Bros, at the time of the shipment, by their order in favor of H. Oohn & Go. assigned the bill of lading to them to the extent of that order, and to that extent made them consignees under the bill of lading. No question could have arisen if the bill of lading expressed on its face that the property was for account (as to the bars in question) of A. Block & Co. to be delivered to Newstadter Bros, for H. Gohn & Co. ■ So, also, if the bill of lading had been at the time indorsed by Newstadter Bros, to H. Cohn & Co. to the extent of the bars in question. The order, which was to “ deliver as directed,” was, however, equivalent to this. The bars, then, were shipped by the plaintiffs, consigned to H. Cohn & Co. and by regular invoice and bill of lading. The defendants’ counsel claims, however, that the words “consigned to H. Cohn & Co. by regular invoice and bill of lading,” should have had added thereto “in which they shall be named as consignees.” Nothing in the policy requires this. The word “consigned” does not require it. A consignment is merely a transmission of goods for sale, and, to consign, is to transmit, or send goods for sale. (1 Burr ill’s Law Diet. tits, “consign,” “consignee,” “consignment.”') The words consignor and consignee may express the relation of principal and factor, or of vendor and vendee. The bill of lading is not conclusive either way. (Price v. Powell, 3 Comst. 322. Sweet v. Barney, 23 N. Y. Rep. 335. Grove v. Brien, 8 How. U. S. 429.)
    In this case, it clearly appears from the policy that the gold which was to be insured was the gold of the plaintiffs, and that H. Cohn & Co. to whom it was sent, were their agents. As no title was to pass, then, by the mere shipment, the only purpose of the shipping documents, so far as the underwriters were concerned, was that of identification.
    As against the vessel, it is clear that there was nothing in the form of these papers which would have precluded the plaintiffs from holding the Golden Gate as carrier, though Levi Strauss & Co. were named as shippers.
    2. In construing matters of description, if enough appears to bring the thing described within the controlling particulars of the description, slight variations may be disregarded. (Ruan v. Gardner, 1 Wash. C. C. Rep. 145, 150. Burr v. The Broadway Ins. Co., 16 N. Y. Rep. 267. And see Pars, Merc. Law, 437; 1 Phil, on Ins. § 430.)
    II. If, however, a bill of lading in which H. Cohn & Co. were named as consignees be held essential, the paper at folio 94 answers the demand, Newstadter Bros, being bailees of other gold as well as of the plaintiffs’, make with the carrier an engagement for the whole, and thus take a position like that of an expressman chartering a crate or car and giving receipts for parcels to be carried by him. (N. J. Steam Nav. Co. v. Merchants’ Bank, 6 How. U. S. 344. Stoddard v. Long 
      
      Island R. R. Co., 5 Sandf. 180.) The paper given by Newstadter Bros, to the plaintiffs is like such a receipt; and has the essential elements of a bill of lading. It names the shippers : “ Shipped by A. Block. & Co.” the consignees : “ To be delivered to H. Cohn & Co.” and describes the property. (See Dows v. Greene, 24 N. Y. Rep. 638; 32 Barb. 490.) With such a shipping receipt or bill of lading, and a full invoice accompanying the principal bill of lading, the utmost requirements of the policy are certainly fully met.
    III. The acts of the defendants in accepting the risk when reported, entering it on the policy with full knowledge of the alleged defect in the form of the consignment, receiving the premium, and returning a dividend upon it as a premium earned, either gave a practical construction to the policy, if ambiguous, or operated as a waiver of the defect in the form of the shipment, if defective.
    1. Assuming that the policy was so ambiguous as to mean either that the gold should be consigned to H, Cohn & Co. by any invoice or bill of lading which would serve to identify it, and entitle H. Cohn & Co. to receive it from the ship; or that it must be consigned by documents naming H. Cohn & Co. as consignees; the acts of the defendants on accepting the risk pronounced the risk to be within the description, and were properly admissible as evidence of the understanding of the parties at the time.
    If the policy had been made to cover a risk proposed at the time it was written, and H. Cohn & Co. then stated that they had been advised of a shipment to them by the Golden Gate, under Newstadter Bros/ bill of lading, and the defendants took the risk, describing it in the policy as here, what took place at the time of writing, the policy would clearly be evidence of the sense in which its language was used. (Bidwell v. The N. W. Ins. Co., 24 N. Y. Rep. 302. Galen v. Brown, 22 id. 37. Steffens v. Collins, 6 Bosw. 223. Colbourn v. Dawson, 1 J. Scott, 70 E. C. L. 765. Almgren v. Dutilh, 1 Seld. 28.)
    2. But these acts still more clearly operated as a waiver of the defect in the form of the shipment, if it was defective. This point assumes that the contract of insurance was conditional upon a risk being reported to the defendants, which came within the description in the policy. The policy was an executed contract in reference to the gross total insured, $50,000 ; the subject matter, specie, gold, &c.; the route, San Francisco to New York ; the rate of premium, &c. Even if it were necessary that the risk reported for indorsement on the policy should not only agree in all these particulars, but that the defendants might require that the gold should be addressed in form by the bill of lading to H. Cohn & Co. as well as consigned to them in fact, it is quite clear that, being satisfied that it was competent for them to waive this mere formal and unimportant requirement, the acts of the defendants in accepting the risk, with full knowledge that, by bill of lading, the gold was addressed to Newstadter Bros, and not to H. Cohn & Co. were clearly such a waiver. (Liddle v. Market Ins Co., 4 Bosw. 179, affirmed in Court of Appeals. Whittaker v. Farm. Ins. Co., 29 Barb. 312. Holbrook v. Basset, 5 Bosw. 147.)
   By the Court, Robertson, Ch. J.

The defendants claim that the expression in the policy “ consigned to H. Cohn & Co. by regular invoice and bill of lading,” demands the insertion of the names of that firm in such bill of lading as consignees, iu order thereby to cover any shipments. They contend that the object of such provision was to protect them against the risk of loss of premiums or shipments, which might arrive safely, by concealing the fact that they had been covered by such open policy ; inasmuch as under it, so construed, the assured could not avail himself of parol proof, to bring a particular shipment in case of loss, within its terms ; and that without the insertion of the words and shipped ” before “ by regular invoice,” or some equivalent ones, no different interpretation can be given to it. The main argument to sustain this position is, that such words must .have been inserted for some further purpose than merely to require invoices and bills of lading to accompany the goods, since they are universally sent; and that such purpose could only he that contended for; that the persons to whom the consignment was made in the hills of lading, was material to the discovery of risks assumed and premiums earned, and the mention of their names in the bill of lading, was the main object to be attained.

But the facility of concealment of risks covered by the policy; and evading liability for premiums therefor, by shipping gold in a third person’s name,- if so great an evil and so vital to insurers, should have been guarded against by an express and unambiguous stipulation, in language intelligible to both parties. Was such the case here ? The language of the clause in question is “ consigned to H. Cohn by regular invoice and bill of lading.” The preposition used is by,” not in,” and the invoice is to consign the gold, as well as the bill of lading. “ Consigned ” is by no means a word of such technical import as to be confined in its scope to the operation of a bill of lading. (Burrill’s Law Dict, in verb.) Cl By,” as much signifies “ by means of,” as “ by the language of.” In is a much more appropriate word to express the latter ; indeed both are generally found coupled together in conveyances, where reference is made therein to the language of the instrument as well as its effect. Goods, to whose possession a person is entitled by an assignment or indorsement of a bill of lading of them, are as much consigned to him thereby, as if he were named in the' bill, (Zachrisson v. Ahman, 2 Sandf. 68,) and no technical force can be given to the word consigned, as applied to an invoice. It follows that such phrase cannot be subjected to so rigorous a construction as to . require Cohn & Co.” to be designated in a bill of lading and invoice of gold as consignees, in order to bring them within the terms of such policy ; so long as it is equally susceptible of a more liberal one, without departing from the meaning of the words employed. The construction now contended for, if adopted for the reason urged therefor, would extend to the exclusion of parol evidence to prove a mistake in a bill of lading, which is admissible in other cases, (Lee v. Salter, Hill & Den. 163,) since otherwise the underwriter would be equally baffled in ascertaining what premiums he had earned.

It is moreover not to be overlooked as insignificant, that the contested phrase precedes, and does not follow, the description of the kind of subject of insurance, and is connected with the name of the shipper, the party insured, and the consignee, and must have been intended to carry out a kindred purpose. The making of a contract of insurance depends frequently on the character of the parties insured, and sometimes on that of those who represent them; the names of the owners and shippers were, therefore, inserted for the purpose of protection ; the name of the consignee was simply for the purpose of identification ; and the requirement of regular invoices and bills of lading was evidently in contrast with irregular lists, ship’s receipts, or other modes of contracting for the transportation of the metal, .and also to determine that it was originally destined for New York.

But even if such phrase composed part of the description of the subject insured, if the main characteristics are observed, slight deviations in unimportant or contradictory particulars, may be overlooked. (Ruan v. Gardner, 1 Wash. C. C. 149, 150. Burr v. Broadway Insurance Co., 16 N. Y. Rep. 267.)

It is by no means clear that the memorandum of the gold forwarded to Cohn & Co., expressing it to be shipped by the plaintiffs, to be delivered to H. Cohn & Co., and signed by the shippers in San Francisco, (Newstadter Bros.,) who received the same jointly with other amounts, and took a more formal bill of lading of the whole, was not equivalent to a new bill of lading, or at least an assignment pro tanto of such bill to Cohn & Co., as in case of an expressman carrying parcels, (Stoddard v. L. I. R. R. Co., 5 Sandf. 180; N. J. St. Nav. Co. v. Merch. Bk., 6 How. U. S. 344;) since in such cases there appears to be a privity of obligation between the common carrier and the party whose goods are carried. It seems also to contain enough of the elements of a bill of lading to constitute one. (Dows v. Greene, 24 N. Y. Rep. 638.) This derives still more force from the fact of the existence of the custom to ship parcels of gold belonging to different persons, when under a certain amount in value, jointly, in the name of one person. The defendants were chargeable with knowledge of such custom, and the language of the contract was to be construed in reference to it. (Astor v. Union Ins. Co., 7 Cowen, 202. Dana v. Fiedler, 12 N. Y. Rep. 40.) The risk' taken was but for $12,000, below the standard, and they were therefore bound to know that the bill of lading might be taken in other names, though for the benefit of the plaintiffs. The latter are not to be presumed to have intended to forego the advantage of such mode of shipping, without clear expression showing it. And the forwarding of such memorandum by the common agent of all the parties who shipped in the name of one person, was the best mode of separating and indicating the interest of each in such common bill of lading.

The effect' of the conversation between the clerk of the consignees, and the president-of the defendants, upon the exhibition by the former to the latter of the telegram of the shipment, depends somewhat upon the question whether the policy attached, • and continued to be attached, without notice of the risk ? It would be a matter of serious doubt, whether the note in the margin of the policy prevented it from attaching until notice of the risk, and the omission to notify would hardly detach it, if it once attached. It seems to follow, therefore, that unless a new and binding agreement was made at the time of the notification, varying the terms of the original agreement, the rights of the parties must be determined by that alone. It is true, it is possible that if the plaintiffs could have done anything at that time to repair any defect in the documents, the defendants might have been estopped from denying that the risk announced, came within the policy, after accepting it, but it was too late for any change in that respect. The admission, however, of the president of the defendants, that a variation of the names of the persons by whom, or to whom, or in whose names, such goods were shipped, is valuable as showing that the danger of losing premiums, by concealing risks, was not considered by him, at least, as the evil intended to be provided against in this case by the contested clause.

The judgment should, therefore, be affirmed with costs.  