
    Hayden et al., Plaintiffs and Respondents, v. Nevins et al., Defendants and Appellants.
    The defendants being joint owners with W. & Co., of the Metoka, obtained a policy, March 8, 1852, for one year, in their own names, for §5,500, on the interest of W. & Co., therein, (being one-sixth,) loss, if any, payable to themselves, and gave their notes for the premium, which in case of loss was to be deducted.
    October 2, 1852, W. & Co., assigned all their property to plaintiffs, who, by letter, October 20, 1852, informed defendants thereof and stated, “we wish insurance on the Metoka to be for our account, from October 2, 1852, and we will be accountable for the premium from that time to the expiration of the present policies, or until we direct them to be canceled.”
    October 25th, 1852, defendants acknowledged receipt of the letter, saying “ we note contents; will forward our accounts against W. & Co. when we know how to make them out.”
    November 20,1852, they procured this indorsement to be made on the policy, “It is agreed that a change of interest shall not prejudice this insurance.” In December, 1852, the defendants charged in their books, to the plaintiffs, the premium from October, 2, 1852, for the balance of the year, and in January, 1853, rendered an account containing this charge.
    A loss occurred in December, 1852, and defendants received the whole amount, $5,500, in March, 1853. In that month, plaintiffs requested payment of the moneys received, and defendants insisted on deducting the whole amount of their premium notes, and refused to pay only the balance after making such deduction. The plaintiffs drew for $4,500, which was paid, and brought this suit to recover the balance due without such deduction.
    
      Held, 1. That the policy from October 2,1852, became one on the interest of the plaintiffs as assignees, and that they were entitled to the whole sum insured, without any liability to have deducted therefrom the premium, from the date of the policy to October 2, 1852.
    2. That the demand made and refusal to pay, were sufficient to maintain the action.
    (Before Bosworth, Ch. J., and Woodruff, J.)
    Heard, April 1, 1861;
    decided, June 1, 1861.
    Appeal by the defendants, Peter I. Kevins, Jacob A. Kevins and Peter I. Kevins, Jr., from a judgment in favor of the plaintiffs, Aaron Hayden, Bion Bradbury and Seward B. Hume, as assignees of Wheeler & Co.
    The action is brought to recover the amount insured on the“Metoka,” defendants having received it; and was tried in April, 1860, before Judge Bobebtsob, without a Jury. The facts found by him, and his conclusions of law, are succinctly stated in an opinion accompanying his decision, as follows, viz.:
    Bobebtsob, J. In the year 1852, Messrs. Wheeler & Co., merchants, doing business at Eastport, in the State of Maine, were joint owners with the defendants, of the ship Metoka. The defendants procured a policy of insurance in their own names upon the interest of Wheeler & Co., in such ship for $5,500, from the Mercantile Insurance Company, of the City of Kew York, for one year from the 8th of March, 1852, the loss, if any, payable to themselves.
    On or about the 2d of October following, Wheeler & Co. assigned all their interest in such vessel and other property to the plaintiffs, also residing in Eastport, Maine.
    On the 20th of October, the plaintiffs wrote to the defendants, informing them of the assignment from Wheeler & Co., and in the same letter requested the insurance on the Metoha, and other vessels, to he for their account, saying they would be accountable for the premiums from the preceding 2d of the month until the expiration of the existing policies, or until they should direct the policies to be canceled. The defendants replied to such, letter that they had received it, and noted its contents, and promised to forward accounts. The defendants had in September previous, paid all the premiums upon such policy of insurance, and charged the amount to Wheeler & Co. In December following, they credited that firm with the same proportion of such premium as the period between the 8th of March and 2d of October bore to the whole year, and charged the plaintiffs, as assignees, with the residue; and in January' following, they rendered an account to the plaintiffs containing such charge. In Kovernber of the same year, an indorsement on such policy was procured by the defendants to be made by the Mercantile Insurance Company, declaring that a change of interest should not prejudice such policy. In December, a loss occurred under the policy, and in March following, the defendants received the amount of such loss from the Company, and paid over a large part to the plaintiffs, but claimed to retain the part of the premium charged to Wheeler & Oo. The amount of the original premium was, by the terms of the policy, to be deducted, if unpaid, from the loss. The assignment from Wheeler & Oo. to the plaintiffs, provided for a return of assets to the former, after paying the claims of creditors who should accept such assignment.
    The only question, it seems to me, under these facts, so far as any claim for a lien on the proceeds of the policy is concerned, is whether the policy with the indorsement in November, became a new policy covering the interest of the plaintiffs, instead of a continuance of the old policy covering the interest of Wheeler & Oo. At the time the plaintiffs gave directions respecting the insurance in October, ■ 1852, they would have had no claims for any loss, under the original policy, because they were not the persons, and theirs was not the interest intended to be insured thereby, by the defendants. (Sharp v. Whipple, 1 Bosw., 567.)
    And whether Wheeler & Oo. could have recovered or not is immaterial, except that the defendants could not, by merely agreeing to hold the same policy for the plaintiffs, divert the right to the proceeds from Wheeler & Oo.; of course the assignment to the plaintiffs, by the latter, of the ship did not transfer the right to the policy, or any sums to become due under it. Nor is it material whether the insurers were informed, in either case, of the persons intended to be covered by the insurance, the mere intention by the defendants being enough. The defendants had control of the policy, so far as Wheeler & Oo. were concerned; as their agents, they could have the policy canceled, and pro rata premium returned, which it would have been a matter of prudence to do, as it might be doubtful if Wheeler & Oo.’s insurable interest remained, and they would thereby secure the part of the premium unearned. It would also be much more convenient to reinsure for the plaintiffs in the same company, because, by taking out a new policy, the latter might be rendered more willing to cancel the old policy, where no premium was to be returned.
    The defendants undoubtedly accepted the engagement proffered by the plaintiffs, in the letter of October 20th, at least they did acts from which the plaintiffs had a right to infer that they had performed what the former had requested to be done. If the defendants had, in Hovember, taken out a new policy, in the same form in which it formerly stood, intending to cover the plaintiffs thereby, there is.no doubt that no one else- but they would be entitled to the proceeds of a loss. There is no question but they did so intend, and that both they and the Company understood that the policy with the indorsement was intended to cover a new interest; in fact, so far as the plaintiffs were. concerned, to become in reality a new policy, using the old instrument to express the new contract. The defendants might have gone through the ceremony of receiving back the pro rata premium on the Wheeler policy with the understanding that they Avould pay it back on the Hayden policy, but it was unnecessary; they might also have used another printed form of insuring, but that was also unnecessary; the understanding plainly was that the policy should cover the new interest and the loss was paid on account of it. The plaintiffs not only proposed to have the insurance continued on their account, but also to pay the future part of the premium; they had no object or interest in undertaking to pay the past, they might as well have insured anew; it cannot be supposed that they intended to have any moneys they might be entitled to for a loss of goods belonging- to them, applied to paying- a debt of Wheeler & Co. Upon all the facts of the case I have come to the conclusion that on the 20th of October the plaintiffs had no interest in the policy previously made to the defendants, and instructed the latter to continue insurance on their behalf; promising to pay the future part of the premium; that the defendants accepted such agency, and having a right to cancel the policy for Wheeler & Co., did so, by changing it to one on the plaintiffs’ interest in the vessel in question, the premiums being changed so as to apply to a new one by consent.
    That the defendants could have no lien for the part of the premium earned on the first policy, on the proceeds of a loss under the second, it being a new engagement with new parties. (Sharp v. Whipple, ubi sup.)
    
    The mere fact of using the same printed form for both agreements, does not affect the question, and the plaintiff is entitled to judgment for the portion of the premium note withheld.
    The defendants are undoubtedly not hable as agents without a demand, but I consider their insisting on the amount of such note as an equivalent; and judgment must therefore be rendered for the balance of account in the defendants’ hands, with interest.
    Judgment having been entered accordingly, the defendants appealed.
    
      D. D. Lord, for appellants.
    I. Unless the defendants have lost their right by having discounted their own notes for premiums; or by Wheeler & Co.’s assignment; or by the memorandum made on the policy under date of 20th November; or by Hayden’s letter dated 20th October; or by the entries made on their own accounts; they are entitled to deduct from the loss collected the entire premium, including that which accrued previous to 20th October, 1852.
    1. As agents of Wheeler & Co., they had a lien on the policy, and on any funds collected under it for the premium. (Sharp v. Whipple, 1 Bosw., 565, and cases there cited.)
    2. Independent of their lien as agents, the terms of the policy secured this right of deducting premium. Wheeler & Co. were entitled, under the policy, only to the amount of loss, less the premium.
    3. If, therefore, the plaintiffs claim under this policy, they cannot object to its condition in this behalf.
    4. They do claim under this policy and on no other ground.
    II. The defendants have not lost their said rights by discounting their own notes given for premiums.
    1. Wheeler & Co. have not done or suffered anything entitling them to new rights.
    2. The lien for the note was not lost by anticipating its payment: whether paid before or after due, the liability to pay was the ground of lien.
    III. Wheeler & Co.’s assignment did not deprive defendants of any right.
    IV. The memorandum of 20th November, consenting that a change of interest should not prejudice the insurance, was merely a waiver of an objection; it was not a cancellation of the old policy nor the execution of a new one; the policy continued, notwithstanding, to be the same policy, and subject to the same liens and equities.
    V. Hayden’s letter of 20th October, 1852, was not a proposal involving in any way the relinquishment by defendants of their lien on the policy; on the contrary, it held out to. them the chance, in the event of a loss, of recovering the premium prior to 20th October, 1852. This was the only inducement to allow their policy to continue, and negotiate with the insurers for a waiver of the objection from change of interest.
    1. The letter says, “We wish the insurance to be for our account, until termination of the present policies, or until we direct them to he canceled.” This shows the intention that the policy should not be canceled.
    2. Defendants were justified in supposing that the continuance of the policy involved a continuance of the lien.
    VI. The defendants have not waived their lien by entries in their account.
    The entries were, charges to the assignees, of the premium after 2d October, and credit of same amount to Wheeler & Go. They show nothing more than acceptance of proposal contained in Hayden’s letter of 20th October.
    VII. The plaintiffs, being general assignees, hold really for- benefit of Wheeler & Go., who ultimately get the benefit of the insurance, and should not therefore be discharged from payment of the premium.
    VIII. The plaintiffs cannot recover without a demand. Hayden refused to take the balance admitted to be due, saying he would draw for it, and his only draft has been paid.
    
      H. G. De Forest, for respondents.
    I. The proofs show that the defendants collected for the plaintiffs’ account $5,500, and that the only sum actually" paid by them was $4,500.
    The burden of proof is upon the defendants, to show themselves entitled to the balance.
    Their only warrant for charging the premiums on the Admiral, the Azalia, and the Metoka, is plaintiff’s letter of 20th October.
    H. By the letter of 20th October, 1852, the plaintiffs requested the insurances to be for their (“our”) account from 2d October, adding that they would be accountable for the premiums from that date to the expiration of the existing policies.
    The evidence shows clearly, that Hevins & Sons accepted this employment.
    The plaintiffs became, thereupon, personally chargeable with the premiums from the 2d October, and the defendants were bound to fulfill the terms of the agency, the plaintiffs alone being their principals.
    III. The -defendants undertook to fulfill these instructions, and before the loss took place, they themselves adopted the only reasonable and fair construction of these instructions.
    
      1. The entries in the defendant’s books are inconsistent with the claim they now set up.
    2. The rendition of the account of December 1st, 1852, is inconsistent with this claim.
    3. The terms of the letter itself are inconsistent with this claim.
    4. Defendants only charged the pro rata on the other policies.
    5. The assertion of their claim was an entire afterthought.
    IV. The claim of the defendants to a lien on the policy, is inconsistent with the employment which they undertook.
    They undertook to have the policies continued on the account of the plaintiffs, for a new and distinct consideration, namely, the plaintiffs promise to pay the premium from the 2d October. Their undertaking was, that the /•plaintiffs should have the full benefit of the policies, without deduction.
    Suppose that the defendants had a lien on the policy for a balance due by Wheeler & Oo., sufficient to absorb the whole proceeds of the policy, would they have been entitled to charge this balance to the plaintiffs, after acceptance of their agency?
    The defendants not only failed to assert a lien, but they expressly and in terms stated that they had none.
    V. Ho demand was necessary to charge the defendants under the circumstances. The judgment should be affirmed.
   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.  