
    James M. Hood, Respondent, v. The Manhattan Fire Insurance Company, Appellant.
    (Before Oakley, Ch.J., Campbell and Bosworth, J.J.)
    April 6;
    May 14.
    By the terms of a policy of insurance, against fire, the subject-matter insured was described as a “barque (on-the stocks near said ship), building for,” &e., “with privilege to build another vessel alongside,” “in a ship-yard, on the west side of Taunton Biver, Massachusetts.”
    
      Held, that the policy not only covered so much of the contemplated barque as was actually on the stocks, but also such parts of the framework being in the ship-yard, as had been so far wrought, with the design to make them a part of the contemplated barque, as to be in a condition to be framed, and actually incorporated into the parts on the stocks, and which were in the proper place to be conveniently applied to that use, and which, by reason of being so wrought and fitted, were substantially valueless for any other purpose.
    This came before the General Term, on an appeal from a judgment at Special Term, and involves the question of the proper' construction of that part of the policy of insurance which describes the subject-matter insured. By a policy dated September 8, 1849, the defendant insured James M. Hood & Co. against loss or damage by fire to the amount of $7,500, “ on a ship on the stocks in a ship-yard, on the west side of Taunton River, in Somerset, Massachusetts,” from the first of the said September to the first of the following November.
    On or abouf the 20th of September, 1849, by mutual agreement between the parties to the policy, it was made to apply to a' barque then being erected bn the stocks near the said ship, and the following memorandum of such agreement was, by the defendant, inserted in a blank in the policy, left immediately after the description of the subject insured, and left in the printed form for the description of the subject insured, that is to say:
    “ September 20, ’49. This insurance is transferred to cover barque (on the stocks near said ship) building for Howes, Godfrey & Co., with privilege to build another vessel alongside.”
    The complaint alleged the foregoing facts, and a loss by fire occurring on the 17th of October, 1849, to the extent of $2,500, and averred that “ the said loss and damage was by the damage •by fire to the frame of the said barque then alongside thereof, in the place described in the said policy, and cut, fitted, adapted, and intended for the said barque, and, in fact, appertaining thereto, and part thereof.” It then proceeded to state, that notice of the loss was given, and a particular account of the loss and damage was delivered to the defendant, with the proper proofs, and that subsequently thereto, all the property and assets of the firm of James M. Hood & Go. were assigned to the plaintiff,' non-payment of, and refusal to pay the loss.
    The answer, among other things, denied “ that- within the time insured by said policy, a loss by fire, within the description of fire assumed in the policy, happened to the said barque so insured by the said policy, and then on the stocks in the ship-yard, in said policy mentioned, to the amount specified in said complaint, or to any amount.”
    “ And these defendants, on information and belief allege, that such timbers, plank, boards, or lumber, if any, were in separate pieces, and were not, nor was any part thereof, at the time of the alleged damage or destruction thereof aforesaid, or at any time previously, actually set up and upon the said stocks, in said ship-yard, or worked, or built, or incorporated in the said barque, then on the stocks in said yard, nor could the same, at the time of said fire, have been so incorporated in said barque, until they had been moved, raised, or transported from the place where they then were, and certain work and labor had been done to connect them with, and to build them into the said barque.”
    The fire of the 17th of October, “ broke out inside of a ship which was on the stocks and nearly completed, and the keel of which was about sixty feet north from the keel of the barque ; it burned up the, ship, and the frame of the barque. At that time the keel was blocked, and in its place for the barque ; some part of the frame was on the south side of the keel, some part on the north side of it; a part was north of the ship; a part of the frame was moulded, hewn and bevelled; some of-it had been actually laid across the keel, and fastened to it. The whole frame was in the yard, and two-thirds or three-quarters were moulded; there was no other part of the frame hewn and moulded; the stem-frame and stern-frame were alongside, and had been fastened together, and ready to be put up ; the rest was all ready to be put up ; it was not framed, but ready for framing; this timber was so cut as to supply this vessel and no other, and was useless for any other purpose. Three hundred and sixty-two sticks, which would have made forty-four frames, and which were ready for framing, were burned; the stem and the stern-frame were not burned. * * * Hone of these three hundred and sixty-two sticks had been put into frames, but they were ready therefor. * * * The frames could not have been placed on this barque until after they were put together; nothing was needed to be done, but to put them together, and put them up; they were not to be fastened by bolts to the keel, they were to be shoved between the keel and kelson.”
    The principal question arising upon this evidence being simply the-question, whether the property damaged by the fire was covered by .the policy, the judge, at the trial, directed the jury to find a verdict in favor of the plaintiff for the amount of the loss proved, to which charge the defendant excepted. The jury found a verdict for $2,869.44, on which judgment was entered, and from that judgment the defendant appealed.
    
      M. S. Bidwell, for appellant,
    made and argued the following points.
    
      I. The judge did not leave to the jury any question' whatever; Be did not, for instance, leave to them the question, whether, as a matter of fact, these sticks, destroyed by the fire, constituted the barque or a part of the barque insured; nor whether, as a matter of fact, they were “ lumber or building materials” mentioned in the subsequent insurance; but peremptorily directed the jury to fmff a verdict for the plaintiffs. Therefore, unless upon the evidence, these sticks, as a matter of law, constituted the barque or a part of .the barque insured; and unless, also, upon the evidence, as a matter of .law, they were not “ lumber or building materials” mentioned in such subsequent insurance, the direction was erroneous, and the verdict should be s’et aside. Two principal questions, therefore, are raised by this direction:- First: Were these sticks covered by the first insurance? Second: Were they not covered by the subsequent insurance ?
    H. They were not covered by the first policy. 1. They were not a barque. Though intended and partially prepared to be put into the barque which was the subject of insurance, they had not become a part of it, and were not ready to be put into it, nor were they even framed together; and they could not have become a part of the barque until more work had been done upon them. A barque, like a house, is essentially different from its materials collectively; as water is different from its component gases: it is a result of their combination in certain proportions: though the materials exist, it would be absurd to say that the barque or house exists until the materials are put together, or that the materials are a part of the barque. or house, until they are affixed to the nucleus of the structure while in progress. The contents of a lumber yard, a blacksmith’s shop, and a warehouse of cordage, &c., do not constitute a barque, or ship, or fleet. The ship results and begins to exist when the materials are adjusted and put together in certain permanent positions. The materials lose the character of' lumber, &c./and become barque or ship, &c., as fast as they are worked in and thereby incorporated in it; as a man’s dinner ceases to be food and becomes a part of the man as soon ' as it is eaten and digested and assimilated, and not before. 2. The insurance was confined to a structure on the stocks. There was, at the time of the insurance, a barque, on the stocks, otherwise the policy would not have taiken effect. But these sticks were not on the stocks, never had been on the stocks, and at the time of the fire were not ready to be put on the stocks. The policy did not cover timbers or other materials, although intended or prepared for the barque, until actually inserted and built in the barque on the stocks. If these sticks were the barque, then the barque was not on the stocks and the defendants are not liable. (2 Duer on Ins. 644, 646. 1 Phill. on Ins., 285, 347. 2 J. C. 127, 173. 8 J. R. 307.) 3. The other words inserted in the policy, as a part of the designation of the subject, lead to the same conclusion; all of them confine the risk to a particular locality, and exclude a liability for loss to matter in a different place. The subject insured was: 1. Abarque; 2. On the stocks; 3. Near the ship; 4. With the privilege of building another vessel alongside. This privilege would be nugatory, if the barque wherever situate or scattered was covered by the policy; and the provision would be absurd to speak of a vessel’s being alongside the harque, if the barque consisted of sticks of timber scattered, as these were, all over the yard. 4. Confining the risk to this structure on the stocks was important: if the policy had covered these scattered sticks, the premium would have been greater, and the risk would have been greater. In fact, if the sticks had become a part of the barque on the stocks, no loss would have been sustained: the barque on the stocks was not injured. 5. A different construction would leave it matter of the greatest uncertainty what was the subject insured; whether it was the timber for the barque, as soon as it was felled ? or only as soon as it was brought into the ship-yard ? or only as' soon as work was commenced on it to fit it for the barque ? or only as soon as the materials were ready to be framed together ? or -only as soon as they were entirely ready to be put intd the structure on the stocks ? or whether, if it was thus ready, but was not in the ship-yard, it would be covered by the policy, or whether it would be covered if in any part of the ship-yard, or only if in a particular part of it, and, in such a case, within how many feet it must be of the stocks ? -It is to be presumed that the parties could not have intended to enter into such a vague, doubtful, and uncertain contract, when they fixed with so much care and precision the very moment of the termination of the risk. 6. The insured themselves, in their preliminary proof under oath, deliberately and carefully made, described the property injured as “timber and lumber,”—as “442 pieces of timber,”—as “ ready to be put into the frame of the barque,” and as “ alongside of the barque. This language shows that the property destroyed constituted, not a part of the barque, hut pieces of timber and lumber alongside of it, and designed to be put into it. The plaintiff himself evidently felt that he could not, consistently with truth, swear that the barque was partially or totally injured. This proves that, according to the ordinary use of language, these pieces of timber had not become a part of the barque on the stocks mentioned in this policy of insurance, any more than the moulds, for which, also, the insured made a claim. 7. This construction is in conformity with analogous cases. (Sillsbury v. M'Coun, 3 Coms. R. 395, 6 Hill’s R. 427; Fryatt v. Sullivan Co., 5 Hill. R. 117; Johnson v. Hurst, 11 Wend. R. 135; Gregory v. Stryker, 2 Denio’s R. 628, Year-book, 5 H. 7, folio 15, cited 4 Denio’s R. 335, 336, n.; Wood’s Civil Law, 157, 159.) 8. Finally, it is in conformity with an express judicial opinion in a similar case. (Mason & Leap v. Franklin Ins. Co., 12 G. & John. R. 469.)
    III. The property destroyed, was covered by the subsequent policy. It was “ timber and building material.” The insured could have recovered for its destruction under the policy mentioned. It had been “ timber and building materials” within the meaning of that policy, and had been covered by that policy. When did it cease to he ?
    IT. For these reasons, the complaint should have been dismissed.
    V. At all events, the jury should not have been directed peremptorily to find a verdict for the plaintiff.
    VI. The evidence offered by the defendants and excluded by the judge was admissible, and the exceptions of the defendants were well taken in relation thereto. 1. The policy and receipt were admissible. 2. The proffered evidence of usage was admissible. (1 Duer on Insur. 171, pi. 18.)
    
      VIL The judoment should, be reversed.
    
      D. Lord, for respondent,
    made and argued the following.
    I. The frames, as shown in evidence, having been prepared for the barque insured, and made useless for any other vessel, were covered by the policy: they were in fact a part of the barque.
    II. They were not lumber or building materials covered by the policy of The New York Fire and Marine Insurance Company.
    III. Evidence of the usage of insurers to charge a different premium if timber, framework, &c., were included in a policy, was inadmissible in evidence.
   By the Court. Bosworth, J.

Prior to effecting the insurance in question, the defendants had insured the firm of James M. Hood & Go. $7500, “ on a ship, on the stocks, in a shipyard on the west side of Taunton river, in Somerset, Mass.”

On the 20th of September, 1849, the policy was transferred to a barque building by the same firm. The transfer reads thus, viz.:

“ Sept. 20, ’49. This insurance is transferred to cover a barque (on the stocks near said ship) building for Howes, Godfrey & Co., with privilege to build another vessel alongside. “$7500, 2 months $22/^-”

On the 17th of October, 1849, a fire originated in the ship referred to, being then nearly completed, by which the ship and the frame of the contemplated barque were burned. So much of the barque as was on the stocks was not burned.

The plaintiff is. by assignment, the owner of the claim of his firm, to be indemnified for the loss.

At the time of the fire, the keel of the barque was blocked, some part of the frame was moulded, hewn, and bevelled, some of it had been actually laid across the keel and fastened to it, the whole frame was in the yard, and two thirds or three quarters was moulded; the stem-frame and the stern-frame were alongside, and had been fastened together, and were ready to be put up. The rest was all ready to be put up. It was not framed, but ready for framing: “ this timber was so cut, as to supply this vessel and no other, and was useless for any other purpose.”

Four hundred and sixty-two sticks, which would have made forty-four frames, and which were ready for framing, were burned: the stem and stem frames were not burned. About ' \ one third of the' sticks burned were north of the ship, the others lay between the ship and the barque. The north boundary of the yard was about 120 feet from the keel. The frame was in the usual place for laying timber for a vessel building like the barque. A verdict was rendered for the plaintiff under the direction of the court for the value of the framework burned.

The main question is, What was covered by the policy ? Did it cover the framework of the barque, or only so much of the uncompleted barque as was fastened together and upon the stocks ?

The plaintiff insists that the former, and the defendant that the latter is the true construction.

The plaintiff insists that the frames which had been prepared expressly and solely for the barque, and were in' a condition to be framed into and made literally a part of the body of it, which were alongside of it to be thus applied, and which had been so adapted for the uses for which they were designed as to be valueless for any other, were, within the fair meaning ’ of this policy, a part of the barque, and were covered by the policy.

The defendant, on the other hand, contends, that until they were actually incorporated into the body of the barque, and had been fastened in the places for which they were designed, they formed no part of the barque, but were properly speaking only “ lumber and building materials contained in the shipyard,” and were not covered by the policy..

The words used in this policy have not received a settled legal construction, nor is it shown that by use and practice between assurers and assured, they have acquired a specific sense, so that the court can construe them according to such acquired sense and meaning.

The defendant does not insure, in terms, an “ unfinished barque,” but a “ barque building.” The defendant does not insure a subject matter, which has at the time a definite form, which it is to retain while covered by the policy, and the materials, then composing which, are alone covered by the policy.

But a “ barque (on the stocks) building” is insured. These words clearly imply that some part of the structure was then on the stocks, and that the policy was intended to cover more than so much of the structure as was then on the stocks. The defendant concedes that whatever materials should be subsequently incorporated into the structure, would from the moment of their actual incorporation be covered by the policy.

Is the fact of such actual incorporation the test by which to determine, whether the materials, designed and fitted to be component parts of it, and thereby unfitted for anything else, and being in their proper place to be actually incorporated in it, are in that condition a part of the barque, within the meaning of this policy ?

The participle, “building,” in its popular signification, means “ framing and erecting.”

Hence it is a common expression, that a house is “framed,” when the process of building has reached a point that the framework is in a condition to be put together.

The house is raised when the parts of the framework are placed and secured in their proper position, in a standing structure.

Suppose a “ house building,” was the subject insured, and a fire should happen after the framing was completed, and before the framework was put together, and the parts firmly pinned to each other, would not the injury to the frame, and all or any of its parts, be covered by the policy ?

Suppose the words, “ on the stocks,” were stricken from the policy, would the intention of the parties, as indicated by the policy, be different from what it must now be presumed to have been ? Suppose it had been simply “ on a barque building in their ship-yard, in Somerset,” would not the policy cover everything made to be, and fitted to be a part of it, and rendered valueless for anything else, although the parts had not been placed in position, and firmly secured in their appropriate places, when the fire occurred ?

Does the term, on the stocks,” as here used, mean more than this—that the barque, which was being framed and erected, and which was to be covered by the policy, was to be constructed upon the keel then on the stocks, and that nothing was to be deemed part of the subject matter insured, except what might be designed and actually fitted to be. a part of the particular structure thus begun? Were not these words used to identify the several parts of this structure, and to distinguish them from parts of the ship in which 'the fire originated, and from" parts of that which the plaintiff had the privilege of building alongside of the barque, if he should avail himself of such privilege ?

The materiel on the stocks was not a barque; it was not the whole of the subject matter insured. It was a part of the contemplated barque, which the plaintiff was engaged in building, but had not built. It was in its proper-place for laying those parts, of a barque building, which had been fitted to the extent these had, for the uses contemplated.

The frame pieces which were burnt, which had been so far wrought with the design to make them a part of the contemplated barque as to be in a condition to be framed, and actually incorporated into the parts on the stocks, which were in the proper place to be conveniently applied to that use, were also parts of the contemplated barque which the plaintiff' was building.

They were not parts of a barque actually built. No such thing existed, or was insured. All things made, for the purpose of forming an indispensable part of the contemplated structure, which had been so far completed as to be adapted to such purpose, and which, in consequence of such adaptation, were valueless for anything else, in common parlance and good sense, were equally parts of the contemplated barque, or of the barque building. Without the parts burned, or a substitute like them, there could be no barque.

They were as indispensable to the existence of a completed barque as the part on the stocks. They were as truly in their appropriate place, to answer the purpose for which they were designed, as the part on the stocks.

If not parts of the contemplated barque, what were they ?

Were they “lumber and building materials?” It seems the plaintiffs’ firm had a policy effected with another company on “ lumber and building materials,” in the shipyard, in which they were building a barque.

It would seem that one or the other of the policies should » cover the loss, unless, upon sound principles of construction, it may be said, that the materials thus insured, may be so changed in form and character by the labor of the artisan, with a view to make them parts of a barque building and also insured, as to be adapted, and in a position to be applied to the end contemplated, and thus made valueless for any other purpose, and yet be neither building materials, nor parts of a barque building; and while in this particular condition be covered by neither policy.

The phrase, “ lumber and building materials,” conveys the idea of subjects, which may be fitted as well into one structure of a particular class as into any other, and that they are in a condition to be wrought into a form, to be as well parts of one vessel, as of any other vessel of the class.

They indicate the idea of materials no further wrought than to subserve and be adapted to building purposes generally. They do not convey the idea of materials formed and cut, designed and adapted to be parts of a specific building in contemplation, and which, as fast as labor can do it, are being incorporated into the intended building, and which, by means of such adaptation, are valueless for any other purpose.

It seems quite clear that they do not answer the description of “ lumber and building materials,” as these terms are commonly understood. If they do not, the loss could not have been recovered under the policy on property of that character.

Suppose a wheelwright should effect a policy on the lumber and materials for building carriages, &c., in certain designated premises, and subsequently should effect another policy with another company, on a carriage building for A. B. in the same premises.

After some of the materials have had so much labor expended upon them, that the hubs are morticed to receive the spokes, and the spokes are completed and in their proper position to be, and for the purpose of being, driven into them ; and the fellies are completed to be fitted to the spokes, and the parts of the body so fashioned as to be in a condition to be put together, all are consumed by fife ? Will either policy, on fair principles of construction, attach to them, and if S0j which? Are they, in this state, lumber and materials for building carriages, &c., or are they parts of the contemplated carriage for which they are fitted and were designed? or are they neither?

If either, it would seem to be quite clear that they are parts of the carriage building.”

In construing this policy, the fact that the part on the stocks was not burned, is of no consequence. If that had been burned also, the question whether the policy covered any other parts of the contemplated barque, must necessarily have been determined by the same principles and considerations which must control this case on .the facts before us.

If all the parts had been burned, including the keel, still, on the construction claimed by the defendant’s counsel, neither the stem-frame, nor the stern-frame, nor any parts of the frame which might have been lying upon the keel, but not fastened to it, would have been covered by the policy.

.Such a construction is much narrower'than can be reasonably supposed to have been within the contemplation of the parties to a contract, the'object of which would seem to have been to secure' an indemnity to. the plaintiff against loss from injury by fire to parts of a vessel which he was laboring to construct, while so constructing it, or for a period named.

Such a construction would limit the operation of the policy to such parts of the contemplated structure as might be on the stocks, and actually united to’ each other, while other united but detached parts, lying alongside of .the keel, equally approximated to actual completion, and of far greater aggregate value, would not be covered by it.

We cannot think that such was the intention of the parties to the contract, nor that its terms coerce us to adopt the construction claimed by the defendants.

We concede that Mason & Leap v. The Franklin Ins. Co., 12 Gill. & John. R. 469, is, in its facts, substantially like this. That was decided as a cage of first" impression. That is the only case, apparently, in point, to furnish any aids in the disposition of this case not had by the court in the decision of that. In that case, the court gave the conclusions which they formed, without stating the considerations by which their judgments were controlled.

Of that case, it may be said, that the articles burned, for aught that appears, might as well have been used, and were as well adapted for the spars and rigging of some other vessel as that for which they were furnished. If substantially as valuable, and well adapted for such a use as that for which they had been bought, the fact is certainly one of some importance.

In that case the ship had been launched before the fire occurred. As a matter of substance, she had been built, but was not rigged, nor in every other respect fully finished.

In this case, the work of building had not so far progressed, as to have placed the different parts in such position as to have given them even the form of a skeleton of the “ barque building.” Unless the words, “ on the stocks,” are to be regarded as of themselves restrictive of the meaning, which would otherwise be given to the words, a “ barque building,” we cannot think effect will be given to the intention of the parties, otherwise than by holding that all the materials which had been wrought with the intent that they should be, and which were fitted to be parts of the contemplated barque, and which, by reason of such adaptation, were valueless for other purposes, which were lying in the ship-yard in the appropriate place to be, and with the intent that they should be incorporated into the structure, were parts of the “ barque building,” within the meaning of the words as used in the policy in question.

"We think the words, “on the stocks,” were not used to restrict ‘the natural meaning of the words, “ barque building,” but merely to indicate the parts on the stocks as specific parts of the barque to be built, and the locality which the keel was to occupy until the structure was completed, and to aid in determining, in case of a loss by fire, whether parts of a vessel or bark, fitted and ready to be incorporated into the body of a vessel, were actually parts of the intended barque or not.

Although the case is not free from doubt, yet we cannot resist the conviction, that the frames that were burned were as much parts of the contemplated barque as the keel on the stocks, within the»meaning and intent of the parties, as evidenced by the fair construction of their contract. The judgment appealed from must therefore be affirmed.  