
    The Portsmouth Insurance Co. v. John T. Brazee and others.
    Abandonment is not always necessary in cases of salvage of total loss.
    Upon such loss, the sum insured in a valued policy is the measure of damages, and is not to he reduced on account of any expenses required in the management and sale of the damagod property.
    This is a writ of error, directed to the court of common pleas of Scioto county.
    The action in the court below was assumpsit, on a policy of insurance, and upon the trial before the court, on an agreed case,, the court found due to the plaintiff, now defendant in error, $1,556.20, whereupon the defendant below moved the court for a new trial, for the reason, first, that the court erred in finding for the plaintiff, and, second, in finding the amount. But the court overruled the motion for a new trial and rendered judgment for the sum above stated, to reverse which, this writ is prosecuted.
    The following is the agreed statement of facts.
    It is agreed by the parties, that plaintiffs are residents of Lancaster, Ohio; that the office of defendant is kept at Portsmouth, Ohio, whore her directors reside.
    That the defendant executed and delivered to plaintiffs, a marine policy, dated February 17, 1846, on 1,935 barrels of *flour; two hundred and fifty-three of which were on fiat-boat No. 21, and the residue, sixteen hundred and eighty-two barrels, on flat-boat No. 27.
    That the flat-boats Nos. 21 and 27, above mentioned, were the property of Smith & Davis, of Portsmouth, Ohio, who had contracted with plaintiffs to freight said cargoes (which where the property of plaintiffs) therein, from Portsmouth aforesaid to New Orleans, at forty-five cents per barrel freight.
    That said cargoes were consigned to Martin & Rogers, of New Orleans, with directions to them .to re-hip the same to Clement Wyllis, of Boston, in the State of Massachusetts, unless upon their arrival in New Orleans, said consignees could sell said cargoes at $4.50 per barrel, with the addition of the above-mentioned freight and the commission for selling, of which instructions it is not admitted by defendant that she had notice until after the happening of the loss hereinafter mentioned.
    
      That the protest under, date of March 10,1846, signed and sworn to by Chauncey Shaw, captain, and by the rest of the crew of said boat, states truly tho time, place, cause, and consequences of the wrecking of the above-mentioned flat-boat No. 27.
    That by reason of the steamer Yorktown running into said flatboat No. 27, said flat became and was thereby destroyed for all purposes of navigation. That after said cargo was taken out of the river, as in said protest is stated, the said Shaw sold twenty-five barrels thereof, to pay expenses, for $81.25, and as soon as practicable shipped tho residue of said cargo to New Orleans (the nearest and best place for the sale of such damaged cargo), on four steamboats. That as each of tho steamboats aforesaid arrived at New Orleans and landed the flour, Martin & Rogers, the consignees thereof, caused the same to be appraised, advertised, and sold to the best advantage, for the benefit of all concerned, at tho times, for tho sums, and under the circumstances stated in the papers filed herewith.
    *That by reason of the wrecking of said boat, said cargo was submerged in the Mississippi river, as in said protest is stated; that the price of sound flour at the port of New Orleans, upon the arrivals of said cargo, was as in said appraisements is stated, and that by reason of said flour being damaged as aforesaid, it became necessary for the interest of all concerned, that tho same should be sold as soon as practicable. That said flat-boat No. 27 would have arrived at New Orleans within ten or fifteen days from the time of the disaster, had not that disaster, nor any other after that time, occurred. That had said flat-boat arrived at New Orleans without accident, tho price of sound flour, when she would so have arrived, was less in that market than the price at which the consignees were authorized to sell the flour by tho instructions aforesaid. That plaintiffs have not paid to Davis & Smith the freight upon the cargo in boat No. 27, nor any part thereof, and Davis & Smith do not claim that freight has been earned, or that plaintiffs are under any liability to them by reason of said contract. That the gross proceeds of the various sales
    of said cargo, amount to........................ $5,733 28
    The expenses after the disaster were as follows,
    viz........................................................ Steamer’8 freight on flour.............................$1,055 20 Expenses at the wreck................................ 58 05 Martin & Rogers’ commission 2J por cent...... 243 33—1,256 58 Brought forward..............$4,476 70
    That the port wardens, appraisers, printer, and other charges at New Orleans amount to........................... 241 78
    Leaving the net proceeds of said sale at........................$4,234 92
    That all the above-mentioned charges are admitted to be reasonable, and the usual charges for the like services; but defendant denies her liability to pay the $143.33 commission to Rogers & Martin. That the whole amount of said charges, including the commission of $143.33 to Bogers & Martin, were paid out of the proceeds of said flour.
    *That the amount insured upon said 1,682 barrels of flour, being $4.50 per barrel, is $7,569.
    That immediately upon defendant’s hearing of the sinking of said boat as above stated, she sent James Davis, one of her directors, to look after the cargo insured. That the plaintiffs were at the same time informed by letter from said Davis & Smith, that an accident had happened to said boat, the particulars of which were not then known.
    That before said Davis arrived at New Orleans, all the flour had been received there and sold in the manner above stated. That said Davis procured from Martin & Bogers their draft on New York, payable to plaintiffs, for $4,256.20, being the aforesaid nett proceeds of said sale, with the premium of $21.28 thereon.
    That said Davis, upon his return to Portsmouth, on the 9th of April, sent by letter of that date to plaintiffs, at Lancaster, said draft on New York. That the amount of said draft, deducted from the amount insured upon said flour, leaves a balance of $3,312,80.
    That, on the 20th of April, the plaintiffs visted the office of defendant and demanded the payment of the difference between the amount insured upon said flour, and the above-mentioned net proceeds of the same, being the sum of $3,312.80, subject a deduction of 2J- per cent, as per policy, which defendant refused to pay ; but paid to plaintiffs, on account, $1,726,87, leaving a balance of $1,585.93, subject to the deduction aforesaid, demanded by plaintiffs, but not paid by defendant.
    W. Y. Peck and C. O. Tract, for plaintiff in error, submitted the following authorities :
    Lewis v. Rucker, 2 Burr. 1070; Stevens & Beneck on Av. 39 51, 284, 285, 287-289, 295, 296, 329, 330, 342, 355, 359; Bosby v. Chesapeake Ins. Co., 3 Gill & Johns. *450; Fulton v. McCall, 1 Yeates, 464; S. C., 2, Dall. 219; 2 Phil. Ins. 7, 215, 217, 222, 231, 238; 4 Pet. Cond. 231; 3 Mason, 36 ; 3 Wheat. 103; Kinnie’s Comp. 546; Park on Ins. 102, 103, 111; King v. Beach, 3 Bos. & Pul. 308; 2 East, 581; Hughes on Ins. 281, 282 ; Marshall on Ins. 203; Clark v. United States Ins. Co., 7 Mass. 369; Lawrence v. New York Ins. Co., 3 Johns. Ch. Cas. 217; Watson v. United States Ins. Co., 3 Wash. C. C. 1.
    John T. Brazee, for defendants in error, submitted the following authorities:
    1 Kinnie, 583; Moses v. Columbian Ins. Co., 6 Johns. 219; 2 Phillips, 222; Gordon v. Mass. F. & M. Ins. Co., 2 Pick. 261; Gordon v. Browne, 2 Johns. 158; Cambridge v. Anderton, 9 E. C. L. 224; Pringle v. Hartly, 3 Atk. 194; Columbian Ins. Co. v. Catlett, 6 Cond. U. S. 547; 1 Kinnie, 534; 7 Ohio, 283, pt. 1; 2 Phillips, 27; Suydam et al. v. Marine Ins. Co., 2 Johns. 238; 2 Phillips, 216.
   Avert, J.

This was a valued policy. The number of barrels of flour in both of the boats was 1,935, and the value stated in the policy $8,707.50, being $4.50 a barrel.

The court, in determining the loss on the cargo sunk in flat-boat No. 27, estimated the value as inserted in the p>olicy, and after deducting the payments actually made by the company to the insured, and the two and a half per cent, addition, according to the terms of the policy, rendered a judgment in favor of the insured for the balance. In adopting such a basis for their judgment, the common pleas erred, it is said; the particular errors are pointed out, and it is insisted :

1. That tho market value of flour in New Orleans, at the time the flat-boat would have arrived there, if no accident had happened, should have been the basis. Because it is claimed, according to the agreed case, that the flour was *to be sold there; and if the insured should obtain the price, in the New Orleans market, that would be just the amount they would have realized, had the cargo arrived in safety, and though this is less than the price at the place of shipment, yet, upon the principle of indemnity, said to be the true principle under the circumstances, this market value should have governed in estimating the loss. But such does not appear to us to be the correct rule. When the contract of insurance was executed, neither party could have known what would be the value of the article insured, at the time of its reaching the place of destination. Whether it would find a rising or a falling market could not bo foreseen ; and the contract ought not to bo subject to the uncertainties arising from continual fluctuations in the'market. The present suit is upon a valued policy; and according to the authority of our own court, as well as that1 of others, the value fixed by the parties in the contract is binding, unless there be proof of fraud or misrepresentation on the part of' the insured. The judgment in the court below is the same as in a ease of total loss and abandonment by the insured; and in this, according to the facts appearing upon the record, no error is discovered. There was no actual abandonment indeed, but this is not always necessary. The facts were not known to the insured, until their ownership in the entire property was at an end. Under the law, it w'as taken and sold, without any agency of theirs • there was nothing left but the money which the purchasers had paid ; and it would have been an idle'ceremony to attempt a formal abandonment. The boat, by the accident, had been sunk and destroyed, the whole cargo damaged, and as soon as practicable, after the accident and after the captain’s protest, the flour was shipped to New Orleans, the nearest and best place for the sale of such damaged cargo. The necessity for a quick transportation was so pressing, that, without regard to additional cost, four steamboats were suddenly employed to take this cargo to a place of sale. If the insured had been present, at the time the injury occurred, *lhere can be no doubt, but what they would have made the abandonment; and wo think it right to calculate their damage as upon a total loss. The flour had been consigned to Martin & Rogers, at New Orleans, and their service became necessary in order to make sale of it. Eor these services they charged commissions to the amount-of $143.33; and these charges are proved to be reasonable, by the evidence in the case. It is, however, objected, that- these commissions ought to be paid by the insured. Had the flour arrived uninjured and been sold by these consignees, it is very certain that the commissions would have been deducted from the proceeds, before transmitting them to the insured. But they originated from the fact, that the flour was in a damaged state, and constantly becoming less valuable. For if it had arrived in a sound state, there would have been no sale, and no such expenses incurred, because, at the price, the consignees would have had no right to sell it, as is shown in the agreed statement.

It is insisted also that the freight in the flat-boats, set down at $756.90, should be deducted from tho claim of the insured; that this, had the boat taken the' flour to its destination, must have been paid by the freighters, who were the insured; and in such ease, of course, the amount would come out of the proceeds of the flour. Besides, it is now ascertained that Davis & Smith, the owners of tho boat, have abandoned their claim for the freight; and therefore it is but just, that the sum in this matter saved, be allowed to the insurers. If the principle of indemnity were alone to decide between the parties upon this point, there might be some excuse for deducting this sum from the insurer’s loss. But not applying that principle, we can see nothing in the case to justify us in transferring to the insurers the rights or benefits, whatever they may bo, of a contract with which they never had any connection or concorn. Upon the whole, then, tho decision of the court seems to have been in conformity with the laws applicable to the case, and a new trial is denied.  