
    Daniel Bedell, plaintiff and appellant, v. The Commercial Mutual Insurance Company, respondents.
    1. Where, in an action upon a policy of insurance, the defense is that by mutual consent the policy was canceled as of a day when the vessel insured sailed from one of two ports named to the other; after evidence has been given that the assured, on an application made to him to cancel the policy, referred the applicants (the Ins. Co.) to one West, as a person who would settle the whole matter; it is competent to prove the conversations had subsequently between West and the officers of the company on that subject.
    2. In such a case, where evidence is given tending to show an agreement between West and the company to cancel the policy as of a day when the vessel sailed from one of two ports named to the other, it is competent to prove on what day she so sailed.
    3. When, during the progress of the trial, it is proved in such a case, without objection, that the insured was told by his agent that the company charged an extra premium for a voyage between the two said ports, a refusal to instruct the jury that the company had no right to make such a charge, is not an error for which a new trial will be granted; when the judge states to the jury, as the reason of his refusing to so charge, that the case did not involve any such question, and it does not appear by the bill of exceptions or otherwise, that it was urged to the jury that the company had any such right; or that proof of such a claim, being rightfully made, or being in fact made, was proper to be considered by them, in determining the issue whether the policy had been actually canceled prior to'the time of the loss, by the mutual consent of the insurers and the insured.
    4. On an appeal from the judgment only, in an action tried before the Court and a jury, the Court will not review the case upon the, evidence, with a view to determine whether the verdict is against evidence. Such an appeal presents, for the consideration of the appellate Court, questions of law only.
    (Before Bosworth, Woodruff and Pierrepont, J. J.)
    Heard, February 12;
    decided, May 29, 1858.
    This is an appeal by the plaintiff from a judgment against him, entered on the Verdict of a jury. The action was tried before Mr. Justice Boswobth and a jury, on the 22d of December, 1857.
    It is on a marine insurance policy, issued by the defendants. The complaint sets forth the incorporation of the defendants, as a Marine Insurance Company, the issuing of a policy by the defendants to one David W. Smith, on one-sixteenth part of the schooner Anne E. Coxe (valued, at $1,650), for one year, from April 19, 1856; alleges the giving of a note for the amount of the premium ($165), and that the same is not yet due; the continuous interest of the insured in the policy; the total loss of the vessel on the 1st of July, 1856; the famishing to the defendants due proof of the loss and of the interest of the insured; a subsequent assignment to the plaintiff of the policy and of all claim for the loss; offers to deduct the amount of the note given for. the premium; and prays judgment for $1,485, and interest thereon, from April 6th, 1857.
    The answer admits the facts alleged in the complaint, and sets up as a defense, that the policy “ was by the mutual consent and sanction of -the said David W. Smith, and these defendants canceled and annulled from and after the 21st of May, 18.56,” .... - “which was the day when the said vessel, Anne E. Coxe, was reported.to have sailed from Mobile for Honduras,” and that no loss occurred while the policy was in force.
    ■ At the trial, the defendants holding the affirmative of the issue, called as a witness, A. B. Holmes, the - vice-president of the company, who gave evidence in relation to the application for the policy; produced the policy and the indorsement of cancellation upon it, which, as he said was made on the 28th of June, 1856, and reads thus: “June 21, 28, 1856. Pay return premium, and cancel this policy from May 21, ’56. $137.50. A. B. H., Y. P.”
    They then called E. C. Dixon, one of their clerics, who testified (among other things) thus: “I called on David W. Smith in reference to this policy, . . between the 20th and 25th of June. . . I told him the company wanted to cancel it; he said Mr. West had the policy. . . . That West would settle the whole matter, and all that he said about it was gospel, and I must go to him about it; I called on Lane, West & Co., the same day, and asked West what he was going to do about Smith’s policy. (Plaintiff’s counsel objected to any evidence of conversation with West; the objection was overruled, and plaintiff’s counsel excepted.) West said he was going to cancel it; that the company charged too high a rate for the voyage; he then gave me the policy and told me to cancel it from the day the vessel left Mobile for Honduras.” . .
    “ The witness Holmes, being recalled by defendants’ counsel, was again asked: When did the company learn of the sailing of the vessel from Mobile to Honduras ? (The plaintiff’s counsel objected to this question; the Court overruled the objection, and the plaintiff's counsel excepted.) A. About the 6th or 7th June, 1856; the day of sailing was reported to us, as the 21st of May.”
    When the defendants rested, the plaintiff examined Gr. W. Smith, a son of the insured (who was present at the conversation between Dixon and his father), in respect to such conversation. He testified inter alia, thus: “Dixon asked my father for his policy on the Anna E. Coxe; my father asked what he wanted it for; he said the company wanted five per cent moré.” . .
    R. Gr. Lane, a witness for plaintiff, on his cross-examination, said: “ I stated to Smith, the assured, that the company charged an additional five per cent, for the voyage from Mobile to Honduras, and he demurred to it, and said he was insured for a year; he did not say he would pay it; I told him he had better see to it.” . .
    
      Redirect: “The extra premium, claimed was for the voyage from Mobile to Honduras.” -No objection was made to the reception of any of this evidence.
    The case concludes thus: “Both sides having rested, the Court charged the jury, in substance, that the only question in the case was, whether the plaintiff had consented to the cancel-ling of the policy, either in person, or by any one who was expressly authorized to act for him.
    “The plaintiff’s counsel requested the Court to decide and instruct the jury as matter of law, that under the policy in question, the defendants had no right to require an extra premium for the voyage from Mobile to Honduras; but the Court refused so to decide and instruct the jury, and stated that the case did not involve any such question, to which refusal plaintiff’s counsel excepted.
    “ The jury found a verdict for the defendants.”
    The policy contained no warranty nor prohibition against the sailing of the vessel from Mobile to Honduras; nor any provision that if she did so, any extra or additional premium should be payable.
    Judgment having been entered on the verdict, the plaintiff appealed from it to the General Term.
    
      Wm. Allen Butler, for appellant.
    I. Upon the whole evidence at the trial the Court should have instructed the jury, as-prayed by plaintiff’s counsel, that the defendants had no right under the policy issued to David W. Smith, to require an extra premium for the voyage from Mobile to Honduras.
    1. It is true that this was not an issue expressly raised by the pleadings, but the evidence on the subject of the cancellation of the policy, as admitted by the Court, presented a state of facts which involved this question as an important, if not the controlling consideration in the case.
    2. The defense set up was a cancellation of the policy by mutual consent. The proof showed that about five weeks after the policy was issued, the defendants charged an extra rate for a voyage from Mobile to Honduras; (this evidence was admitted against plaintiff’s exception;) that the first time the subject of cancellation was brought to the notice of 'the insured, it was by the information from defendants that they wished to cancel it; that he was informed of their additional charge of five per cent, premium for the voyage, (see cross-examination of Lane by defendants’ counsel); and that he objected to the charge. All this evidence appeared by defendants’ witnesses under exceptions, or on the cross-examination of plaintiff’s witnesses. It did not support the issue raised by defendants, and show them as consenting to a cancellation of the policy, or as parties in a “mutual consent,” but as insisting upon a cancellation as matter of right, unless a new consideration was paid for the insurance by the extra premium claimed. Mor did the further proof on the part of defendants, in respect to plaintiff’s acts, show him as a party to a “ mutual consent,” but, at the most, as referring defendants as to their demand to West, and an acquiescence in the demand by West. The whole evidence on this subject, assuming that West was authorized to act for him, being as follows : “West said he was going to cancel it; that the company charged too high a rate for the voyage.”
    3. The evidence of the claim for extra premium, enforced by the alternative of cancellation if not acceded to, having been thus admitted and being in the case, the obvious and important inquiry for the determination of the question, whether the cancellation of the policy was the result of the mutual consent, concurrence and agreement of the parties, or of the arbitrary requirement of the defendants, was this: Had the defendants a right under the policy to charge the extra premium for the voyage in question?
    4. They had no such right. Mobile was not “ a foreign port in the Gulf of Mexico,” and Honduras is not in the Gulf of Mexico, or in any other waters prohibited in the policy.
    5. The reason assigned by the Court for refusing to charge as prayed, that the question was not “involved” in the case, did not meet the difficulty. The jury were left at liberty to assume, and doubtless did assume, from the form of the charge, that the defendants had a right to claim the extra premium. Their verdict cannot be accounted for on any other supposition.
    .6. The question, though not “involved” in the case as it stood on the pleadings, was involved in the case as it stood on the evidence under the rulings during the trial; If those rulings were right, the jury should have been instructed on the points which they admitted; if they were wrong, the plaintiff’s exceptions were well taken.
    ’ II. The exception to the rulings as to testimony were well taken. The evidence relating to the sailing from Mobile to Honduras, the rate charged, &c., was irrelevant and may .have influenced the jury. .(Worrall v. Parmelee, 1 Comst.; 521.)
    III. The verdict, if not clearly against the weight of evidence, is sustained by testimony so slight, of such inferior quality, (consisting entirely of parol admissions or declarations which are denied in the most positive manner), that the present exceptions should be sustained, and a new trial granted for the purpose of complete justice between the parties.
    A cancellation of a solemn contract, extorted as the alternative of yielding to an illegal demand, and then claimed to be by mutual consent, and proved by admissions, against the positive denial of the party alleged to have made them, should not be sustained, unless all the facts which operated upon the minds of the parties and conduced to the result, were fairly and fully before the jury; especially should it not be sustained if it be apparent from the whole case that the ends of justice may be subserved by further inquiry. (Kennedy v. N. Y. & H. R. R. Co., 3 Duer, 69; Murray v. Smith, 1 Duer, 412.) .
    
    IV. The judgment should be reversed and a new trial- ordered.
    
      Wm. D. Booth, for respondents.
    I. The plaintiff’s first exception was to the admission of evidence- of a conversation with Mr. West, of the firm of Lane, West & Co. The Court properly overruled the objection, because, • .
    1. Evidence had been given before that stage of the proceedings, showing West and his firm to have been the agent of Dayid W. Smith, the assignor of the plaintiff.
    
      a. Lane, West & Co.; applied for the insurance.
    5. They signed the application on which the policy was issued, and that application was in evidence.
    
      c. It had been proved that David W. Smith had informed the defendants that “Mr West would settle the whole matter.”
    
      d. And the defendants had been referred by Smith to him.
    2. All this evidence of agency had been given before the introduction of any conversation with the agent, and it was sufficient to establish the fact of his agency in the absence of any evidence to the contrary.
    3. The statement of the agent in the premises, and more especially where the matter had been specially referred to him by his principal, was entirely competent, and the Court properly admitted such statement in evidence, and the plaintiff’s objection was not well taken.
    II. The plaintiff’s second objection was to the admission of evidence proving the day of sailing of the vessel from Mobile to Honduras.
    1. The defense in this case was the cancellation of the policy from the day the vessel sailed from Mobile to Honduras.
    2. And it had already been proved that the defendants had been directed to cancel it from that day.
    3. It was, therefore, entirely relevant and competent for the defendants to show what that day was. It was material for the purpose of showing the date from which all their liability on the policy ceased, and the Court properly admitted the evidence; and the objection was not well taken.
    HI. The plaintiff’s request that the Court would instruct the jury, as matter of law, that under the policy the defendants had no right to require an extra premium for a voyage from Mobile to Honduras, was properly denied; and the exception thereto is not well taken.
    1. There was no question arising as to any claim for any extra premium.
    2. The policy was in evidence, and shows for itself.
    3. It was never contended or claimed that the defendants had any right to require any extra premium. The answer presents no such claim, and the case involved no such question, either as a question of law or fact.
    IV. The only questions in the case were, whether the policy had been canceled before the loss occurred, and whether the plaintiff had consented to such cancellation, either in person or by any one authorized to act for him.
    These questions were submitted to the jury; they were passed upon by them, and a verdict was rendered by them for the defendants; and the evidence fully sustained that verdict.
    The judgment should be affirmed with costs.
   Bv the Court.

Bosworth, J.

—This action comes before the Court, on an appeal from the judgment only. The appeal, therefore, presents only questions of law for our consideration.

Evidence, of conversations between the agent of the defendants and West, was properly admitted, after it had been proved that the agent had been referred by the insured to West, as the person who would settle the whole matter.

It was competent to prove on what day the vessel sailed from Mobile to Honduras, as the policy was to be canceled from the date of such sailing, if there was in fact an agreement for cancelling it.

It is not denied that the charge presented to the jury, the only question of fact necessary or proper to be considered or determined. That was whether the plaintiff’s assignor had consented to the cancelling of the policy, either in person or by any one who was authorized to act for him.

But it is insisted the Court erred in not instructing the jury that, the defendants had no right to charge an extra premium from Mobile to Honduras. The Court was requested to so charge, but declined for the reason, stated at the time to the jury, “that the case did not involve any such question.”

No, such allegation was contained in the answer, and the bill of exceptions does not show that the counsel for the defendants insisted before the jury, that the defendants had any such right.

A new trial cannot be granted for such a cause, unless it be true that it is the duty of the Court, to charge upon every abstract proposition contained in any request that may be made, although it does not appear that any such proposition was urged to the jury-

The jury were instructed, that the only question was that of the actual consent of the insured, to the cancelling of the policy. And when requested to charge that the defendants had no right to require an extra premium, the Court in effect said, that was a question with which the jury had nothing to do, that the case did not involve any such question.

The jury must have understood that they were not to consider any such question, and that it must be wholly dismissed from their consideration.

To make it error to refuse to affirm or negative, directly, a particular proposition, which the Court is requested to declare, when the determination of it, either the one way or the other, can have no natural influence upon the decision of any issue of fact made by the pleadings, or upon the rights of the parties upon any state of facts the jury can find, and that too when the jury are instructed that no such question arises in the case; it should at least appear by the bill of exceptions that such a proposition has been argued to the jury, and that justice requires the Court to instruct the jury in relation to it.

The reason assigned for refusing to charge the jury as requested, imports that the subject matter of the request had not been pressed upon their consideration.

The defense to the action was placed by the answer upon the fact of an actual consent to cancelling the policy, and not upon a right based upon any clause or provision in the policy.

And it does not appear that the jury were urged, to find the more readily that such consent was given, because the company had a right to insist upon an increased premium being paid. There is nothing in the terms of the policy which furnishes any grounds for such a pretense, and nothing in the case to show that any such ground was taken at the trial. Under such circumstances, we think, the judge, at the trial, when he stated to the jury that no such question was in the case, as that of the right of the defendants 'to make such a charge, stated enough to advise the jury that no such question could be properly considered by them, and that no error was committed in not directly affirming the truth of the proposition contained in the request.

We cannot enter into a consideration of the evidence, on this appeal, nor dispose of the questions of law, influenced by any views by which we might be governed on a' motion for a new trial on a case.

We do not understand the judge to have ruled, at the trial (as the plaintiff’s counsel now argues that he did), that evidence that the defendants charged an extra rate for a voyage from Mobile to Honduras was admissible. Ho such objection was taken. The judge, on the plaintiff’s objection, at one stage of the cause, excluded evidence that the defendants were notified of Lane, West & Go’s, intention to send the vessel on a voyage from Mobile to Honduras. But when enough had been subsequently proved to justify the inference that it had been agreed to cancel the policy from the date she sailed on such a voyage, he allowed evidence to be given of the time she so sailed. It was to the admission of that evidence that the plaintiff excepted.

What was said as to charging an extra premium, from Mobile to Honduras, is contained in the evidence given after the defendants had rested, and was given without objection. It formed no part of the conversations of which the plaintiff had given evidence, but was part of a conversation between Lane and the insured, at a time when no officer of the company was present, and of which, there was no attempt to prove, that any officer of the company had ever heard.

We think none of the exceptions are well taken. This being an appeal from the judgment only, we cannot enter into a consideration of the evidence, nor be influenced by any of the considerations which would be applicable to a motion for a new trial on a case.

Judgment affirmed. 
      
       Although the question objected to was, according to the case as settled; “When did the company learn of the sailing of the vessel from Mobile to Honduras”? it is evident from the answer given, (to which no exception was taken or objection made,) and from the respondents’ points, and from the absence of any suggestion to the contrary in the points of the appellant, that the object of the inquiry was to ascertain on what day she in fact sailed. The appellant does not suggest, either in his points, or by anything said on the argument of the appeal; that he could, by any possibility, have been prejudiced in any way, by the answer given. When the Company ascertained the day on which she sailed, seems, in itself, to he wholly immaterial. When she did sail, might be very material, if it should be made a question whether the loss occurred before or after that event. It was competent to prove on what day she did sail; and as it.was not pretended nor suggested that she did not sail on the 21st of. May, the question in connection with the answer given to it, could not possibly have prejudiced the plaintiff, and we do not understand his counsel to now insist that it did.”
     