1808. think it proper to order a new trial, because it appears to us Lessee that the weight of the evidence was strongly against the of verdict. Ross υ. CUTSHALL. Judgment reversed, and New Trial ordered. CASES IN THE SUPREME COURT OF PENNSYLVANIA. DECEMBER TERM, 1808. GIBSON against The Philadelphia Insurance Company. THIS 1808. Saturday, 'HIS cause came before the court upon exceptions to a December report of referees. 24th. An agree lender on "liable to 66 66 same man "ters on a The plaintiff on the 31st of January 1806, borrowed of the ment by a defendants thirty thousand dollars on respondentia, upon respondentia specie, goods, wares, and merchandises, laden or to be laden " to be on board the ship Triton, bound on a voyage from Newcastle, « average Delaware, to Canton, and at and from thence to Philadelphia." in the The bond obligated the plaintiff, in case the voyage should be «ner as unperformed, to pay the principal sum, together with 583 dollars “derwri15 cents per calendar month; and it contained the following "policy of clause, upon which the controversy arose: "It being first de- "insurance "clared to be the mutual understanding and agreement of the « parties to this contract, that the lender shall be liable to average, and entitled to the benefit of salvage, in the same "of the city manner to all intents and purposes as underwriters on a policy" of Phila“of insurance, according to the usages and practices of the city does not "of Philadelphia.” entitle er to calcu late an average loss upon the whole amount of the money loaned and the marine interest, but merely on the cost and charges of the goods on board, and the premium of insurance. Upon an insurance on goods, the underwriters are not liable for freight paid by the owner of the goods during the voyage. 1808. GIBSON V. Philadel. The Triton was chartered from Thomas Carberry and George Johnston of New York, by Nicklin and Griffith of Philadelphia, at a freight of 40,000 dollars; the freighters to pay the ship's expenses, and to deduct them, together with all other sums advanced on the ship's account, out of the freight. To these expenses and advances, the shipment of the plaintiff contributed at Canton; and on the homeward passage, his goods, consisting of saltpetre and teas, suffered sea damage, the former 20% per cent. and the latter 24 per cent.; and the question, upon what amount this average should be calculated, was submitted to arbitration under a rule of court. 100 The referees reported for the plaintiff 5824 dollars 8 cents, according to the following statement: Loss on Saltpetre, admitted to be 20 90 2 100 per cent. 46 100 per cent. This was the premium charged in calculating the monthly payment for the loan, as follows: $7,016 94 cts. for 12 months is $ 584 74 cts. per month, nearly the sum in the bond. To this award the plaintiff filed exceptions: 1. That the average should have been calculated on the amount of the loan and interest when the Triton returned, the special clause in the bond making it a valued policy, and the whole amount of the loan, and the marine interest at the time of the ship's return, being the value. He therefore claimed according to the following adjustment. Cost of Saltpetre, charges, and commissions, $ 24,899 22 Whole amount of loan and marine interest 38,747 dolls. 25 cts. Then, If 27,158 dolls. 23 cts. lose 5,259 dolls. 39 cts.-38,747 dolls. 25 cts. lose 7,503 dolls. 77 cts. the amount claimed. 2. That even supposing the calculation of the referees to have been founded on a right principle, yet, as the plaintiff had paid at Canton a portion of the freight out and home, which was deducted from the money shipped, the referees should have added this to the cost and charges of the goods, and so settled the average upon a larger sum. By the examination of the referees it appeared that the plaintiff endeavoured before them to maintain his first exception, upon the ground of a parol agreement before the execution of the bond, that the loan and marine interest should compose the 1808. GIBSON V. Philadel. 1808. GIBSON V. value; but they were decidedly of opinion that nothing had occurred to vary the written contract. He also alleged before them, in support of that which now formed his second exception, that a Philadel. usage existed in Philadelphia, in settling an average loss on a policy on such a voyage as this, to add to the cost of the goods, the freight paid at Canton; but they were clear that no such usage was proved, nor had they any evidence of it. Ins. Co. The exceptions were argued at March term 1808 before the whole court. Gibson and Ingersoll for the plaintiff. The questions in this case are, 1. Whether the defendants are not liable as upon a valued policy. 2. Whether, even if their liability is as upon an open policy, the report is not incorrect. It is perfectly clear, if this be a valued policy, that the referees have erred; and there are two circumstances which shew it to be valued: the nature of the contract into which the clause is introduced, and the premium which the plaintiff has paid. Without the special clause, the lender would not be liable to partial loss. 2 Marshall 662. In case of such a loss then, the borrower would lose a proportion of the money loaned and its marine interest; for he would be obliged, notwithstanding the loss, to pay the entire interest as well as the loan. The clause was introduced to secure the borrower in this respect; it must be understood with reference to the peculiar contract of respondentia, which in the event of a partial loss involves the borrower in a loss of principal and interest; and it must be so construed as to cure the evil it was intended to remedy. If the principal and interest do not compose the value, then in case of a partial loss, the borrower must be liable to the whole marine interest as before: that is, instead of receiving an average upon what he loses, he will only receive an average upon a part of his loss. His whole loss is principal and marine interest; his indemnity should be to the same amount. This can be done only by treating the loan and interest as a valued policy, and giving him the same proportion of the whole, that his goods have sustained damage. As for instance: take 10,000 dollars for the loan, and 5,000 for the marine interest; suppose the money loaned to be on board, and that 5,000 dollars are lost. Treating it as an open policy, he will receive but about 5,000, whereas his actual loss is 7,500, since he has that amount to |