Robert Smith and Mathew Pearce, who survived John Craig, assignees of James Yard a bankrupt against John Odlin, 4 Yeates 467

Tilghman, C. J. This is an action of indebitatus assumpsit for money had and received, which was tried before Judge BRACICENRIDGE, and a verdict found for the plaintiffs for $2151 and 93 cents. It appears from Judge Bracicenridge’s report of the evidence, that Yard and Odlin were owners of the brig Paragon and her cargo, in partnership. Yard’s share was two-thirds, and Odlin’s one-third. Before the brig sailed, Yard, who was sworn as a witness in the cause, says, that he went with Odlin to one of the insurance offices, to effect an insurance on Odlin’s one-third.

The premium asked at the office, was, in the opinion of both of them, too high, and he advised Odlin not to give it: he offered, if Odlin chose, to insure for him himself at 25 per cent., and cover the premium at 33^ long covering premium. To this Od-lin consented, and their accounts were settled, Yard having charged Odlin with the premium, and paid him the balance of the account. The brig was bound on a voyage from Philadelphia to a port on the Spanish Main, and from thence to a port in Spain. Odlin was captain and consignee, and had power to sell Yard’s share of the cargo, for which he was to have a commission.

No written policy of assurance was signed by Yard ; but it appeared by a writing signed by Odlin, that the insurance to be made by Yard, from Philadelphia to a port on the Main, contemplated the usual risks of fair American trade; that from the Main to Spain contemplated the hazard of capture by any belligerent power. These transactions took place about the middle of August 1801 ; soon after which the brig sailed on her voyage, which she completed in safety. After she sailed Yard procured some insurance on the voy*age from the Main to Spain, and about December 1801, stopped payment.

In the same month, he lodged the policies which he had procured, with Clement Biddle, with directions to draw an assignment to Odlin. The assignment was drawn, but owing to Yard’s hurry he forgot to execute it; and not long after, he went to Spain to transact the business of the estate at the request of the assignees. The assignment recites, that Yard had assumed to insure for Odlin, and that it was intended as an indemnity to Odlin in case of loss.

Yard, soon after his insolvency, requested his assignees to procure further insurance for Odlin, and they did procure an insurance in the name of Odlin, for $12,600 and 80 cents. This was the substance of Yard’s testimony, on which the plaintiffs rested their cause. The defendant, by way of invalidating the testimony of Yard, produced a witness by the name of Joseph Wildes, who swore, that when Yard’s insolvency was known, he called on him with a letter from Mrs.

Odlin, requesting him to deliver the policy of insurance which he had undertaken to procure for her husband ; that Yard said it was very accurate, the insurance was not yet made, but he would have it done. On Yard’s cross examination, he appeared to have forgot the circumstance of Wildes’ calling on him. The defendant also proved, that the sum, which Yard said he had paid for the balance of the account in August 1801, was six dollars different from the actual balance; and from this, and other circumstances not necessary to detail, it was concluded that Yard’s memory was too defective to rely bn.

The credit due to Mr. Yard’s memory (for his integrity was not impeached) was a matter of which, under all circumstances, it was proper for the jury to judge. If they relied on it, and it seems they did, there can be no reason for a new trial on that ground. But the defendant’s counsel brought forward two exceptions to the verdict, founded on points of law: 1st. That in an action for money had and received, the plaintiffs could not recover the premium of an insurance. 2d. That a parol insurance is void. 1st.

There can be no doubt but the principle is just, that an indebitatus assumpsit for money had and received, is not the proper form of action for recovering a premium of insurance. But to this objection it has been answered, that this action was not brought to recover the premium which was settled in the account of August 1801, if Mr. Yard’s evidence was correct; but to recover money, which the defendant had afterwards received as the agent of Yard. A communication had taken place *between the parties pending the action.

Odlin claimed r an allowance for the premium, which he alledged had been *-4/5 unjustly retained by Yard, because he had not effected an insur anee for him. It was at length agreed, that Odlin should pay so much of Yard’s claim as would balance the account, deducting the premium, the amount of which should remain subject to dispute. Both parties came to trial, prepared to contest the real object of dispute upon its merits; so that the objection as to the form of action is not to be favoured. I think, the explanation offered by the plaintiff’s counsel is a sufficient answer to the objection.

Yard swore, that the premium was settled in August 1801. Whether he was accurate in that was matter of consideration for the jury. 2. As to the validity of a parol insurance I do not mean to give an opinion; because, I do not think it necessary for the decision of the point before the court. The question is, whether Yard was entitled to the premium, which is the subject of dispute. Taking the evidence altogether, I think it leads to the conclusion, that Yard was to keep Odlin indemnified from the risks mentioned in the writing signed by Odlin.

This he might do, either by underwriting a policy himself, or by procuring others to underwrite. If he did not do one or the other, Odlin might support a special action on the case against him. Yard being thus responsible, there is no reason why he should not retain the premium which was the price of his responsibility. It was mentioned as an additional reason for anew trial, that the verdict of the jury was against the charge of the court.

It is true, that the judge in his charge did incline to the opinion, that t.he action was not supported by the evidence, and this would have very great weight with me, if the judge, after reporting the evidence, had not declared, that upon reflection, he would not say, that he was dissatisfied with the verdict. • Upon the whole, I am of opinion, that the defendant has not shewn sufficient cause for 'a new trial. Yeates and Brackenridge, justices, concurred. Smith, J. As the chief justice has stated the facts correctly, I will not repeat that statement.

But as I cannot concur in the opinion which he has delivered, it is incumbent on me to state the reasons of my dissent. I know that my brothers do not suppose me capable of differing from them, by an affectation of singularity, or with a view to court popularity, or to avoid the reverse on popular questions. When I am compelled to differ from the majority of the court, it becomes me not to be arrogantly confident in my own judgment; but such as it is, I must be * «¿o *guidedbyit. I am the less diffident of it, because it very 47 I generally leads me to concur with my brothers.

Although the action for money had and received, is not the proper action to recover a premium of insurance, yet I would be willing to join in the refinement, by which the rest of the court overcome that objection ; because a judge ought never to turn a plaintiff round, on account of the form of the action, when he is entitled to recover in any other form, unless supporting the action in its present form would tend to confound all forms of action, which experience convinces us, would produce great confusion and injustice.

I will not say, that a parol insurance may not be valid ; but it is certainly worthy of remark, that there is no instance that I ever heard or read of, where such insurance has been made. Were it sanctioned, it would from the nature of the transaction, be productive of much more uncertainty and inconveniency, of fraud and perjury, than parol sales of land.

Parol sales of land are rendered invalid by positive law; parol insurances are not; and by the general principles of contract, I cannot say, that such a contract may not be valid; but to be so, I conceive that it ought to be proved clearly and beyond a doubt; the full extent and limits of it ought to be ascertained by unexceptionable evidence ; a doubt in the separticulars ought to be fatal to an action on it. Could this action be supported without the evidence of James Yard? If it could not, that evidence cannot support it; because every contract must be either valid or void at the time of making it.

It cannot become the one or the other by any subsequent contingency; there ought to be mutual remedies on it subsisting at the time of making, or it is null and void. It is not sufficient, that a remedy may arise on an uncertain event. If the plaintiffs here had a remedy, exclusive of the testimony of Yard, why was his testimony introduced ? His evidence is not reconcilable with that of Wildes. He certainly betrays a great want of memory in particulars, important to satisfy the mind ; his evidence seems not very consistent with the nature of the transaction, it was produced to establish.

The memorandum is not certain. It ought to have been as certain as the policy itself; or at least, as certain as the memorandum delivered to underwriters in such cases. It is not stated, whether there was to be any warranty; consequently, the extent of that warranty is unknown. Into what confusion would this uncertainty have led, had the vessel been lost ? Favorable cases make bad precedents. If this verdict be established on the good character of Mr.

Yard, similar verdicts will be established on characters not so unexceptionable. *Upon the whole, after the short consideration which [*477 the various business in the court has enabled me to devote to this case, I am much afraid, that should we sanction this verdict and principle, “ ’Twill be recorded for a precedent; “ And many an evil by the same example “ Will rush into the state.”- I am of opinion, that the case requires deliberate reconsideration ; but as the rest of the court are of a different opinion, the motion for a new trial is denied, and judgment for the plaintiffs.

Indebitatus assumpsit will lie for the premium of a policy. 2 Lev. 153.