
    David R. Green et al. versus The Merchants’ Insurance Company of New Bedford.
    Although the officers of an insurance company may not, under all circumstances, be presumed to be acquainted with all the intelligence contained in the newspapers taken at their office, yet the general presumption is, that they will examine, with some care, the items of marine intelligence, especially in relation to vessels belonging to their own port.
    It an action for a loss upon a policy of insurance on a vessel, underwritten by an insurance company, it was proved that a certain newspaper was taken by the defendants ; that in the due course of the mail, the number of such newspaper containing information of the time of the vessel’s sailing, which was material to the risk, would have reached them before the policy was underwritten ; that this number was afterwards found on their files ; and the president of the company testified that he knew of the intelligence contained in it, though he could not recollect the source of his information, it was held3 that this number had been rightly admitted in evidence, and that it was properly left to the jury to decide whether it had been received and its contents known to the president before he signed the policy ; and also whether the information contained in it was the same as that contained in a letter produced at the trial, which had been received by the assured ; and that if it was the same, the omission to exhibit the letter at the time of effecting the insurance, was not a material concealment.
    If a person having directed insurance to be procured at a distant place, on a risk already commenced, receives, before the conti act is made, intelligence of a loss, he is bound to transmit the intelligence by the earliest and most expeditious usual route of mercantile communication, in order that it may be laid before the person requested to underwrite; but the omission to send by an unusual and extraordinary conveyance, although by possibility it might arrive before the policy is effected, will not vitiate the policy.
    This was an action of assumpsit, brought by David R. Green and Robert Gibbs, on a policy of insurance dated July 28th, 1827, on the sloop Falcon. Plea, the general issue.
    At the trial, before Morton J., it appeared that the Falcon sailed from Savannah for New York on the 12th of July, 1827, and that on the 14th she struck on Cape Lookout shoals and was totally lost.
    The ground of the defence was, the fraudulent misrepresentations of the plaintiffs as to the time of the vessel’s sailing.
    The defendants introduced the following evidence.
    Stephen Merrihew, who was the president of the insurance office at the time when the policy was effected, testified, that about 8 o’clock in the morning of the 28th of July, Green, one of the plaintiffs, showed him the paragraph in the Palladium of July 27th, relating to the Falcon. In the column of marine intelligence was the following item : “ At Savannah light-house, 15th instant, Milton, Webb, for Liverpool, &c. The Falcon had-sailed for New York.” In the same column, lower down, was the following : “ Arrived at New York, on the 23d, pilot-boat Tatnall, Hopkins, seven days from Savannah.” Between 11 and 12 o’clock, on the 28th, Green came into the office and desired to obtain insurance on the Falcon. The witness pointed to the first-mentioned paragraph in the Palladium, and said he had seen that information, and the vessel had probably sailed about that time, (the 15th.) Green replied that a Rochester captain who sailed on the 9th, had arrived and reported that she was to sail in two days. The witness asked why she did not sail sooner. Green re| lied that the master had to settle up his affairs, and gave some other reasons. The witness asked Green if that was all the information he had, and he replied that it was. The witness immediately directed the policy to be made, and Green executed the premium note. This was on Saturday. On Monday Green took the policy, and on the same day the parties heard of the loss of the vessel. On cross-examination, the witness stated that he knew of the arrival of the Tatnall at New York on the 23d of July in seven days from Savannah, but he could not recollect whether he read it in a newspaper or heard it from Green ; and that he had no recollection of having seen Lang & Turner’s Gazette of the 24th of July, or any other New York paper of that date, when the policy was effected.
    Lang & Turner’s Gazette of July 24th mentioned, under the head of marine intelligence, that the Tatnall arrived at New York on the 23d, in seven days from Savannah, and that she reported that the Falcon had sailed three days before the Tatnall, for New York.
    William Phillips testified, that on the morning of July 28th be saw on board of the packet Rodman, which had arrived at New Bedford from New York, a letter directed to Green, and another which had been first directed to Green and afterwards to Robert Gibbs, the first superscription being erased, and that he delivered the former to Green about 7 or 8 o’clock on the same morning.
    
      These two letters were written by Gibbs himself, and such parts of them as related to this subject, were introduced. The first letter was dated the 24th, and instructed Green to procure insurance, stating that the Tatnall sailed on the 15th, and that the Falcon must have sailed on the 11th or 12th. In the other letter, dated the 25th, Gibbs expressed his apprehensions for the safety of the vessel, saying that she ought to have arrived.
    Joseph Allen testified, that he was in New York in July 1827, and that he bad a conversation with Gibbs, who spoke of the Falcon and said he had written, or was about to write, to his partner to get insurance upon her. Gibbs brought letters on board the Rodman to send by her. He said he had written a letter to his wife and misdirected it to bis partner, and that he erased that direction, and directed the letter to Robert Gibbs.
    The Rodman sailed on the 26th of July, in the morning. The news of the loss of the Falcon arrived at New York at 2 o’clock in the afternoon of the same day.
    Ivory H. Bartlett testified that he was a proprietor of the stage coaches running between New Bedford and Newport; that in 1827, there was no steamboat mail ; that the arrival of the boat at New York was irregular ; and that when the boat arrived before the mail was made up, the letters brought by the boat came to New Bedford in the mail.
    It was testified that in 1827 the steamboats usually left New York at 3 o’clock in the afternoon.
    The plaintiffs then introduced the following evidence.
    John B. Taylor testified, that on the morning of the 28th of July he took from the Rodman the letter directed to Robert Gibbs, and kept it till afternoon, when he sent it to Mrs. Gibbs ; that early in the evening he saw it at her house, and that she requested him to deliver to Green the part of it which was produced at the trial and which she had previously separated from the rest, but that he went away and forgot it.
    Lang & Turner’s New York Gazette of July 24th was then offered .by the plaintiffs and objected to by the defendants, but it was admitted.
    Benjamin T. Congdon testified, that by the regular mail, Lang & Turner’s Gazette of July 24th, should have arrived at New Bedford on the evening of the 26th, and that he knew it must have been received there at least as early as the evening of Friday the 27th ; that after the loss of the Falcon and before the commencement of this suit, he examined the defendants’ files and there saw the paper of the 24th.
    It was in evidence, that the Tatnall was a fast sailer, and that passages from Savannah to New York varied as to the time in which they were performed, from three to ten days.
    Upon the foregoing and other evidence, the defendants contended that Green was bound to communicate the letters of July 24th and 25th ; that Gibbs was bound to communicate information of the loss, by the steamboat which left New York at 3 o’clock on the 26th of July ; and that either of these omissions amounted to a fraudulent suppression of material facts, which vitiated the policy of insurance.
    The judge instructed the jury, that if either of the newspapers produced on the trial, contained all the information which the letter of July 24th did, and if such paper was actually seen by the president of the insurance company and that part of it containing such information was read by him, the omission to communicate this letter was not material ; that the omission to communicate the letter of July 25th was not material, unless the jury believed that it was misdirected for the purpose of delaying its arrival, or that there was neglect by which it was so delayed as to prevent its being communicated before the insurance was effected ; that although Gibbs was bound to forward information by the earliest and most expeditious usual route of mercantile communication, yet that the omission to send by the steam-boat was not so material an omission as would vitiate the policy, unless it was a mode of communication frequently resorted to by merchants in such cases.
    The jury returned a verdict for the plaintiffs.
    To the above instructions the defendants excepted ; and they moved for a new trial because the verdict was against evidence.
    
      iku ‘¿8th.
    
    
      L. Williams and Coffin, for the defendants,
    cited Carter v. Boehm, 3 Burr. 1909 ; Feise v. Parkinson, 4 Taunt. 639 ; Marsh. Ins. (1st ed.) 347, 348 ; Seton v. Low, 1 Johns. Cas. 1 ; Ely v. Hallett, 2 Caines’s R. 57; Rice v. New 
      
      Eng. Ins. Co., 4 Pick. 439 ; M' Andrew v. Bell, 1 Esp. R. 373 ; Phillips on Ins. 92, 93, 97, 98, 99, 104, 105 ; Littledale v. Dixon, 4 Bos. & Pul. 151 ; Dickinson v. Commercial Ins. Co., Anthon’s Cas. at N. P. 92 ; Fitzherbert v. Mather, 1 T. R. 12 ; Ford v. Lee, 3 Taunt. 381 ; Webster v. Foster, 1 Esp. R. 407 ; Seaman v. Fonnereau, 2 Str. 1183; Hoyt v. Gilman, 8 Mass. R. 336. Also Watson v. Delafield, 1 Johns. R. 150, 2 Johns. R. 526, and 2 Caines’s R. 224.
    
      W. Baylies and Russell, for the plaintiffs,
    cited Phillips on Ins. 100 ; Gen. Interest Ins. Co. v. Ruggles, 12 Wheat. 409.
   Shaw C. J.

afterwards drew up the opinion of the Court. Several questions were discussed in this case, but they were principally, if not wholly, questions of fact, arising from various views of the evidence..

The defence rested upon two grounds : —

1. Misrepresentation and concealment of material inforpnation, by the partner plaintiff, who effected the insurance at New Bedford ; —

2. Delay on the part of the partner in New York, in communicating the loss of the vessel insured, by means of which the insurance was effected after the loss might have been known to the assured.

It is a well known rule of law, that the concealment, or rather silence of the assured in regard to facts already known to the underwriter, if no inquiry is made on the subject, although the facts are material to the risk, will not vacate the policy. Marshall, (3d edit.) 472.

An objection was taken to the decision of the Court admitting Lang & Turner’s Gazette to go to the jury, as evidence that the facts known to the assured at" the time of the insurance, and deemed to be material, were known to the underwriters. It was also objected, that the information in the Gazette was not so precise and full, or so late, as that contained in the letter received by the assured.

It may be very true that underwriters are not, under all circumstances, to be presumed to be acquainted with all the intelligence, contained in the papers taken at their office. But the general presumption is, that the agents of the office will examine with some care,' those items of marine intelligence, which are expressly designed, speedily to diffuse information upon a subject so immediately interesting to them, especially in relation to vessels belonging to their own port. Here it was proved, that the Gazette in question was taken at the office, that in due course of mail, it ought to have been received before the policy was effected, and that upon a search after-wards, it was found on file in its proper place ; it was admitted by the president, though he testified that he had no recollection of having seen that Gazette at the time of effecting the policy, still that he had heard of the arrival of the Tatnall at New York, by which the time of the sailing of the Falcon was reported, though he could not recollect the source of his information. The Court are therefore all of opinion, that the evidence was rightly admitted, and that it was properly left to the jury as a fact, to decide whether this paper had been received and its contents known at the office ; and also whether the information in the Gazette was the same as that contained in the plaintiffs’ letter. If so, they were rightly instructed to consider the circumstance that such letter w'as not produced, immaterial.

In regard to the other point, no exception is taken to the charge, in point of law, that a person having ordered or advised insurance on a risk which has commenced, is bound to communicate his knowledge of the loss by the earliest and most expeditious usual route of mercantile communication, and that the omission to send by an unusual and extraordinary conveyance, although by possibility it might have arrived before the policy was effected, will not vitiate the policy. Under this instruction it was rightly left to the jury to find, whether the plaintiff" Gibbs at New York, knew of the loss before the departure of the steamffioat, on the 26th, and if so, whether the steam-boat, by way of Newport, was a usual and known route of mercantile communication between New York and Newport, at that time.

Upon a review of the evidence, we see no sufficient ground upon which to set aside the verdict as against the weight of evidence.

Judgment on the verdict. 
      
       See Friere v. Woodhouse, Holt’s N. P. C. 572; Elton v. Larkins, 5 Carr. & Payne 86.
     
      
       See 2 Phil. Ev. (Cowen & Hill’s ed.) 294, in notes Alsop v. Commercial Ins. Co., 1 Sumner, 457 to 463.
     