
    John F. Dumas versus John C. Jones.
    Where an insurance is made by one m his own name only, on property valued and it afterwards appears that the insured was owner but of a moiety, he snail recover but for a moiety of the sum insured, in case of a loss.
    Whether profits may be insured under the name of freight, qu<zre„
    
    Case upon a policy of insurance dated January 21, 1804, whereby the plaintiff, by his agent Benjamin Watkins, caused himself to be insured the sum of 5000 dollars on the freight of the brigantine Rose, valued at the sum insured, at and from' Jeremie, in Hispaniola, to Philadelphia, for a premium of twelve per cent. The plaintiff declared as for a total loss by capture and condemnation under the authority of the French government. There was also a count for money had and received.
    
      At the trial, which was had before Sewall, J., at the sittings after November term, 1806, it appeared that the defendant underwrote 1000 dollars, after other subscriptions to the amount of 2500 dollars.
    '[ * 648 ] * It was agreed by the parties that the brigantine Rose was the joint and equal property of the plaintiff and one John W. Foussatt, American citizens; and that her cargo, at the time of her capture, was the property of the same persons ; and that the said vessel and cargo had been captured and wholly lost in the manner averred by the plaintiff in his declaration.
    It was in evidence that the brig Rose sailed from the port of Jeremie, bound to Philadelphia, on the 29th of November, 1803, and was the next day captured by an armed French felucca, and carried into St. Jago de Cuba, and with her cargo was there condemned, principally, as appears from the minutes of the court, for having traded with the rebels of Hispaniola ; that the cost of the cargo on board at the time of the capture was 42,799 dollars; and that the value at Philadelphia, had it arrived in safety, would have been 56,110 dollars, free of duties ; and calculating the profits thereon as freight, the plaintiff’s moiety would have been 6,655 dollars.
    From a declaration made on oath by the plaintiff before a notary public at Philadelphia, which was admitted to be read in evidence, it appeared that the insurance was directed by the plaintiff for the joint account of himself and Foussatt; but the letter to Watkins authorizing and requesting him to make the insurance, and which was shown to the broker before the policy was made, does not mention Foussatt, or any other person but the plaintiff, as interested in vessel or cargo.
    
      Watkins, the agent, also testified that since the notice of this loss, and since it was known that the condemnation was on charges relative to an illicit trade with the brigands, the broker had offered, in behalf of the underwriters, to pay 2500 dollars upon this policy.
    Upon this evidence, a verdict was taken, under the direction of the judge, for the defendant upon the first count in the declaration, and for the plaintiff upon the second count, as for a return of premium only, subject to the opinion of the Court upon the judge’s report; the plaintiff also moving for a new trial.
    The cause was argued, at the last November term in this county, by Dane and Jackson for the plaintiff, and Livermore for the defendant.
    [ * 649 ] * For the plaintiff, it was contended that the freight being fairly valued, the valuation is binding on the parties, though *t may exceed the actual value. But the facts show that there was no over-valuation in this case. The plaintiff’s moiety exceeded the sum insured. The declaration of Dumas before the notary, being only explanatory of his own understanding and intention at the time of making the contract, ought not to have been admitted in evidence. To vary a contract from the obvious meaning of its terms, the understanding of both the parties should be shown, and that of one of them can never with propriety be received. Put that declaration out of the case, and there is not a shadow of objection to the plaintiff’s recovering the whole sum underwritten.
    If the plaintiff was bound to disclose Foussatt’s interest, then the concealment was fraudulent, and the plaintiff is not entitled to a return of the premium. But the verdict disproves this position.
    The objection, which was made at the trial, that the plaintiff, being owner of the cargo as well as of the vessel, was entitled to no freight, is contradicted by the uniform understanding, language, and practice, of merchants and underwriters in this country. Freight is understood here to be that profit which the owner of a ship makes by transporting goods from one country or port to another. If they be the goods of another, the ship owner receives money by way of hire; if they are his own goods, his freight is received in the advanced value of his cargo, this advance in value being directly owing to the transportation.
    If the Court should be of opinion that the plaintiff has a right to recover but for his own moiety, he had certainly a right to' cover the premium he paid, and to do this the defendant must be held to pay 300 dollars of the sum he underwrote.
    
      For the defendant, it was insisted that the plaintiff had not shown an interest sufficient to reach the sum underwritten by the defendant. Profits may be insured eo nomine ; but there is no case where, by a policy upon the freight of a ship, the profits of the cargo have been held to be insured. Freight is the money paid by the owner of goods to the owner of a ship * for trans- [ * 650 ] porting them. Where the two characters of owner of the ship and owner of the goods unite in the same person, no money can be paid or received, and none can therefore be lost. Freight is perfectly understood from the books, and all writers on the marine law agree in its definition. There is no need, then, of recurring to merchants or underwriters for an explanation of a term which has already acquired a definite meaning in common use.
    The declaration of the plaintiff was not introduced to explain or contradict the policy, but to show a material fact, viz., the plaintiff’s share or interest in the subject of the insurance. And it remains for the Court to say that he shall recover the whole amount of the freight intended to be covered by this policy, when he has on oath declared that he owned but a moiety of it.
    
      The defendant’s counsel argued, also, from the evidence in the case, that the condemnation by the French court was for a breach of the laws of the country, and that, therefore, the underwriters were not held. But as the decision does not rest on this ground, it is unnecessary to recite those arguments.
   The action stood continued for advisement, and now the opinion of the Court, viz., Sedgwick, Sewall and Parker, justices, was delivered by

Parker, J.

This action is brought to recover the sum subscribed by the defendant on a policy of insurance, whereby the sum of 5000 dollars was insured, on the freight of the brig Rose, for the plaintiff alone, at and from Hispaniola to Philadelphia. The defendant underwrote 1000 dollars, after five other underwriters had subscribed the sum of 2500 dollars. The freight is valued in the policy at 5000 dollars. The vessel and freight were totally lost by means of a capture by a French privateer, and a consequent condemnation ; and the plaintiff must recover, if he had an insurable interest not covered by the subscriptions antecedent to that of the defendant. Whether he had or not must be determined by the facts reported by the judge, and the documents referred to by him in his report.

It is agreed by the parties that the plaintiff and one Foussatt were the joint and equal owners of the brig and of all the [ * 651 ] * cargo on board ; and it appears that the profits on the cargo, had it been safely landed at the port of destination, would have exceeded the sum at which the freight was valued, so that the valuation in the policy was not unreasonable or excessive. And if, upon this policy, the plaintiff can avail himself of the interest of his partner, as the profits of the voyage may be insured under the denomination of freight, he would entitle himself to recover the sum subscribed by the defendant.

But it is objected that the plaintiff’s interest alone is insured, no representation having been made to the underwriters that he had any partner; and the contract being made with him, and upon his sole account, so that it is not competent for him to recover beyond the value of his own interest in the freight insured. And this seems clearly to be the law as well in this country as in England; and it is founded on just principles.

The insured has a right to know for whom, as well as with whom, he contracts, his calculations depending not unfrequently on a knowledge of the characters of those whom he undertakes to indemnify. If the insured acts as agent for others, he should make known the relation in which he stands, and the policy should express, or, at least, the underwriter should be made to know, the interest of all the persons in whose favor his contract is to operate.

In this case, the freight is valued at 5000 dollars. This must be taken to be the whole freight supposed to be earned on the voyage .nsured; for the plaintiff does not communicate to the underwriter any circumstance which could justify another opinion; but speaks and acts, in the contract, as if he was the sole owner of the vessel and freight.

If, however, there were any doubt whether the sum at which the freight was valued was an estimation of the whole, or only of the moiety which belonged to the plaintiff, that doubt is wholly removed by the declaration of the plaintiff himself, made under oath before a notary public in Philadelphia, w'herein he expressly states that the insurance of 5000 dollars, made by his agent Watkins, was on the joint account of himself and partner. This declaration, we think, was properly admitted *in evidence, [ * 652 ] it being the confession of the party under the solemnity of an oath.

It results, then, that the sum at which the freight was valued m the policy, was considered by the plaintiff as the whole freight of the brig Rose; that he was the owner of but one half of that freight, and that his interest was entirely insured by the underwriters, who preceded the defendant on the policy. It is, therefore, clear by the terms of the policy, that nothing can be recovered of the defendant, if the law will not suffer the plaintiff to recover on account of the interest which his partner had in the freight; and that it will not, is clear from the principles before stated, as well as from decisions of high authority.

In the case of Graves & Al. vs. The Boston Marine Insurance Company, the point was precisely brought before the Supreme Court of the United, States on a bill in equity, praying for relief against a supposed mistake in not inserting the name of one of the partners in a policy procured by the other. It was in that case expressly decided that the interest of a partner not named in the policy cannot be proved in order to make out the whole sum insured by the other partner, no partnership being recognized in the policy; and the principle was adhered to in all the attempts which were made to recover the value of the interest of the company.

This decision being had by the highest judicial tribunal, upon a subject on which it is desirable there should be a uniformity throughout the United States, this Court would not be disposed lightly to question it.

We are, therefore, of opinion that the verdict was right, against the plaintiff on the first count, and in his favor on the second, for return of premium; and judgment will be entered accordingly.

Sedgwick, J.,

in concurring with the foregoing decision, observed that all the Court were not agreed in the position that profits are insured under the term freight; and that the’question of the validity of the condemnation had not been considered by the Court.

The Chief Justice having been of counsel for the plaintiff, did not sit in the hearing and decision of this cause. 
      
      
        2 Cranch, 419.
     