
    Samuel D. Bradford et al. versus The Boylston Fire and Marine Insurance Company.
    in an action against underwriters to recover for an alleged sea damage to bales of blankets bought of the manufacturer in Great Britain and imported into thm country, the defence was, that the damage arose in the manufacture or packing of the blankets, and evidence was offered to prove that the damage was of a peculiar kind and different from salt water damage, and that other bales of blanket» made by the same manufacturer and imported in other vessels, in the same year, had sustained damage of the like nature. Held, that this evidence was admissible.
    Where in an action on a policy of insurance on several bales of blankets, the plaintiff claimed a partial loss on all of the bales, and the judge instructed the jury that he was not entitled to recover unless he proved a damage to the amount of five per cent, and the plaintiff’s counsel did not call his attention to a stipulation in the policy, that partial loss was to be computed upon each package as if separately insured, it was held, that the plaintiff was not entitled to a new trial on the ground that the jury should have been instructed to find for the plaintiff, if they found any one bale damaged to the amount of five per cent.
    Assumpsit on a policy of insurance underwritten by the defendants, upon property of the plaintiffs shipped on hoard a vessel, from a port in England to a port of discharge m the United States ; 16 partial loss to be computed upon each package as if separately insured.” The plaintiffs allege in their declaration, that on May 5, 1828, they shipped on board the Aspasia, at Liverpool, certain goods, to be conveyed to New York, and that owing to tempests on the voyage the salt water found access to the goods and injured them ; and the plaintiffs claimed a partial loss amounting to thirty-three per cent upon the value of the goods.
    
      At the trial before Wilde J. it appeared, that the goods alleged to have been damaged consisted of thirty-two bales of point and duffil blankets ; and that the blankets were manufactoed for the plaintiffs by one Wood, in the kingdom of Great Britain.
    The plaintiffs offered evidence tending to prove that the blankets were damaged on board, by the perils alleged in their declaration. The defendants contended that the damage arose from some defect in the manufacture of the blankets, or from their having been fraudulently packed by Wood in a wet state, for the purpose of increasing their weight, the blankets having been purchased by the plaintiffs by weight.
    The defendants offered in evidence two depositions of one Russell, to prove that during the year 1828 he imported into New York certain bales of point and duffil blankets manufactured by Wood, which proved to be damaged, and, in the opinion of Russell, by being packed in a wet state for the purpose of increasing their weight.
    The defendants also offered the testimony of one Lee, who stated that in 1828, the firm of which he was a partner, received a consignment of point and duffil blankets from Wood, and also some which they purchased of Wood; that the blankets came in three different vessels, and were all damaged ; that the blankets in the inside of the bales were slightly damp and very much spotted, and the outside blankets were perfectly dry ; that the damage to the blankets exhibited as part of the Aspasia’s cargo, was of a similar character, and he would have supposed they were a part of his own ; that the damage was of a peculiar kind and not like that produced by salt water.
    There was evidence in the case tending to show that the damage was caused by sulphuric acid.
    To the admission of the depositions of Russell and of the testimony of Lee, the plaintiffs objected, on the ground that it was an attempt to prove that Wood had fraudulently damaged» the blankets in question, by proving that he had in other cases damaged blankets by packing them in a wet state to increase their weight; which the plaintiffs contended it was not competent for the defendants to do. But the judge overruled the objection and permitted the evidence to go to the jury.
    
      In regard to the principles upon which the jury were to proceed in assessing the damages, if they found for the plaintiffs, no evidence was adduced by the plaintiffs tending to designate the bales supposed to be damaged by perils of the seas, from those internally damaged in the manufacture, or tending to show how much the damage was by perils of the seas and how much by the manufacture, other than that there was evidence tending to show that several of the bales were much more wet externally than the rest of the thirty-two bales, and that one of them in particular was so wet that the water could be wiped off with the hand ; and in the argument of the plaintiff’s counsel, the attention of the jury was called to the particular situation of these bales, which was dwelt upon by him for the purpose of satisfying the jury that the damage complained of must have been a sea damage, and of raising the presumption that all the bales must have been damaged from the same cause : although the judge was not desired to instruct the jury particularly in relation thereto. But the defendants’ counsel, in his argument of the cause, distinctly stated to the jury the legal grounds upon which they must proceed in assessing the damages, namely, that they were to take the difference between the value of the sound and unsound article at New York, and allow the same proportion on the invoice price in England; and the counsel for the plaintiffs in his reply, conceded that the principle had been correctly stated by the defendants’ counsel in this particular ; and the cause was finally committed to the jury by the judge, without his attention being again called to that subject by either party. And the judge directed the jury generally, that unless the damage supposed to have accrued by the perils of the seas to the bales, exceeded five per cent, they must find for the defendants. The jury found a verdict for the defendants, and no inquiry was made or moved for by the plaintiffs’ counsel at the time, as to the principles upon .which the verdict was founded.
    The plaintiffs moved for a new trial; —
    1. Because the depositions of Russell and the testimony of Lee were admitted in evidence.
    
      2. Because of the foregoing erroneous instructions in matters of law.
    
      
      April 1st.
    
      March 23d
    
    
      S. D. Ward,
    
    in support of the motion, cited, as to the first ground, Spenceley v. De Willot, 7 East, 108 ; Holcombe v. Hewson, 2 Campb. 391 ; Finer v. Barrs, 1 Esp. Rep. 293 ; Carter v. Pryke, Peake’s R. 95 ; Somes v. Skinner, 16 Mass. R. 360.
    In regard to the second ground, he said the jury were misdirected as to the amount of loss necessary to enable the plaintiffs to recover. The instruction should have been, that if the sea damage exceeded five per cent on any one bale (not on the whole invoice) the plaintiffs should recover for the damage to that bale. It may be objected that the plaintiffs’ counsel did not request the judge to instruct the jury in any particular. manner on this point. But he did instruct them upon it, and this is an answer to the objection. Where the judge omits to give an instruction, it is incumbent on counsel to request one ; but if he does instruct the jury, in matter of law, it is not decorous in counsel to interrupt him and say the instruction is erroneous. Besides, counsel may be surprised and may suppose at the time, that the instruction is right; and the client ought not to suffer because his counsel are not wiser than the judge.
    S. Hubbard and Cook, contra,
    
    cited on the first point, 2 Stark. Ev. 380 ; and on the second, Pennock v. Dialogue, 2 Peters’s Supr. C. Rep. 1 ; 1 Stark. Ev. 436, 437; Young v. Mason, 8 Pick. 551 ; Hagedorn v. Whitmore, 1 Stark. R. 157.
   Putnam J.

delivered the opinion of the Court. The mam objection which has been made to the proceedings at the trial, is, that the testimony of Lee and the depositions of Russell ought not to have been received for the defendants. It is contended that the evidence proves that Wood made bad blankets for other persons, and that this circumstance has no tendency to prove that he made bad blankets for tire plaintiffs ; that it is no better than to offer evidence of general bad reputation, when a party should be held to prove the particular fraud.

And the case of Holcombe v. Hewson, 2 Campb. 391, has been much relied upon, and is the strongest which we have seen for the plaintiffs. In that case Holcombe was bound to prove that he had supplied Hewson with good beer, and he offered to prove that several other persons who dealt with him while he supplied the defendant, were satisfied with hb beer, as being of excellent quality ; but Lord Ellenborough held the evidence to be inadmissible, because he might have dealt well with some, but not well with other customers. This case was properly decided. But the evidence offered by the plaintiff was of his own doings and conduct in regard to strangers, from which it was intended to be inferred that his conduct towards the defendant had been similar. That would be clearly a non sequitur. But in the case at ■ bar the evidence objected to does not arise between the party who furnished the damaged goods and the purchaser, but between strangers to the manufacturer. The evidence comes in collaterally, and is greatly, if not unavoidably, connected with other testimony which is admitted to be material and competent. The point to be proved by the defendants was, that the blankets were' njured by some other cause than the perils of the sea. They had a peculiar appearance ; they were so singularly spotted and marked, that Lee, who had imported blankets from England, of similar appearance, would have supposed they were the same. This happened in 1828, the same year that the plaintiffs imported those now in question. It happened also, that a great many bales of blankets exactly resembling the plaintiffs’ were imported that year from England into New York. Now it is conceded that it would be perfectly competent to compare the plaintiffs’ blankets with the other damaged blankets, in order to satisfy the jury that it was not the damage of the sea which operated so peculiarly and injuriously. It is not contended but that it would be proper to prove that they all came from England ; hut that evidence would be much less satisfactory than to trace them to one manufactory in England. If you may properly go to the manufactory, why not to the name of the manufacturer. It is not easy to draw the line. They are marked and injured as no other blankets were,, which have been imported. They may have been injured by persons at Wood’s manufactory, without his knowledge, and so without any intention of fraud on his part ; it may have been done by some enemy, with a view to prejudice Wood in his business.

_ In the case of Holcombe v. Hewson before cited, Lord Ellenborough said, “ let the plaintiff call those who frequented the defendant’s house and drank the beer which he sent in.” Why not, in the case at bar, call those who bought of Wood, blankets marked in this extraordinary manner at the ' same time ? The object is not to impute a fraud to the manufacturer, (for we do not see any motive he could have to destroy the blankets,) but to prove in a suit between other parties, that the injury did not arise from sea damage. And the evidence, that the great number of bales of blankets which came that year, in six ships, from Wood’s manufactory, had these distinguishing marks upon them, which are ascertained to have been such as would be occasioned by sulpnunc acid, is we think admissible as tending to disprove the allegation of the plaintiffs, that the injury arose from the perils of the sea.

It is contended, however, that a new trial should be granted for misdirection in stating to the jury that the plaintiffs must prove a damage to the amount of five per cent to entitle them to a verdict, which the jury must have understood to mean five per cent upon the whole cargo and not on any particular bale of the goods, whereas, according to the terms of the policy, the damage was to be computed as if each bale had been separately insured.

We do not think the plaintiffs are in a situation to make this exception. The attention of the judge was not drawn to the point, at the trial. The particular clause in the policy was not a subject of discussion. The counsel for the plaintiffs did not put their case upon the right to recover for the damage upon the single package, but upon the whole invoice.

He commented upon the fact, that some of the bales were wet on the outside, to show that the injury for which they claimed, was from the sea ; and when the defendants’ counsel stated the grounds upon which the jury should assess the damages for the plaintiffs if the verdict should be for them, viz. the known rule, of the difference in value between the sound and the unsound in New York, and allowance of the same proportion of the invoice price, it was assented to by the counsel for the .plaintiffs. If the judge were mistaken in regard to any fact material to be considered, it would be not only proper and right, but the duty of the party to give him an opportunity to explain it. We think there was an acquiescence in the correctness of the charge at the trial.

We are all of opinion that the judgment should be rendered upon the verdict. 
      
       See Leach v. Woods, 14 Pick. 461; Rice v. Bancroft, post, 472; Crease v Barrett, 1 Crompt. Mees. & Rosc. 930.
     
      
       See Standisk v. Washburn, 21 Pick. 237; Greenl. on Evi. § 52; Botiomley v. United States, 1 Story’s R. 135 ; Boldron v. Widdows, 1 Car. & P. 65.
     