BALCOM, J.
The defendants having answered, the court had the right to receive a verdict for a greater sum than the judgment demanded in the complaint, and render a judgment against the defendants for the full amount of the verdict, because the same was consistent with the case made by the complaint and embraced within the issue. (Code, § 275.)
The decision in the action in favor of John W. Audubon and Victor G. Audubon, tried before Judge INGRAHAM, was not a bar to this. No judgment was ever entered in that action, and the order dismissing the complaint therein, with costs, was amended, prior to the trial of this, so as, in terms, to grant a nonsuit against the plaintiffs and discontinue that action on the payment of the defendants' costs.
The first time the defendants' counsel moved for a nonsuit, it was on the ground that there was no proof that the plates were destroyed. The plaintiff then proved they were destroyed, every one of them. The defendants' counsel then renewed his motion to dismiss the complaint, which was denied, and he excepted. The plaintiff gave further evidence, and again rested, when the defendants' counsel renewed his motion for a dismissal of the complaint, which was denied, and an exception noted. The defendants' counsel then gave some evidence, and "again renewed his motion for a nonsuit," which was denied, and he excepted. He did not renew such motion again, or specify any ground on which he made it, at any time, except the first, when he moved on the sole ground that there was no proof that the plates were destroyed, which ground was then obviated by proof that the plates were destroyed. These motions, therefore, did not present the questions, whether the plaintiff should have proved he paid, or offered to pay, the premium for the policy contracted for, and that he gave the defendants notice of the loss, or furnished them with proof of the same. If the defendants' counsel had objected to a recovery on those grounds, they might have been obviated, if necessary, by the requisite evidence; and we cannot presume the plaintiff was unable to give such evidence.
The exception taken by the defendants' counsel to the charge of the judge to the jury was general, and, therefore, is untenable, if any portion of the charge was correct.
It is too plain to admit of discussion that some portions of the charge were correct, and I am of the opinion no part of it was erroneous. It was proper for the judge to instruct the jury to find upon particular questions of fact (Code, § 251); and whether their verdict was against evidence was a question the judge who presided on the trial might determine; and the decision of the special and general terms of the court in which the action was tried, that the verdict was not against evidence, settles that question. There is no provision in the Code authorizing this court to review that decision.
For these reasons, I am of the opinion the judgment of the court below should be affirmed.
DENIO, Ch. J.
The judgment in the former action would have been a bar to the present suit, but for the subsequent order of the court. But the Court of Common Pleas had jurisdiction over the record in that action. It could set aside the decision of the referee for irregularity, or on the ground of surprise or newly-discovered evidence, or it could order it amended if a mistake had occurred, or it could order a new trial on the merits; and it could, moreover, at any time before final judgment, allow the plaintiff to discontinue, upon terms. The grounds upon which the amendment was allowed do not appear from the case in the present action, or from any papers before us on this appeal; but if they did, we could not review the merits of the order. The record of the final disposition of the action does not come before us for review, upon this appeal, for it was introduced on the trial collaterally, as a piece of evidence; and if it should appear that the order was erroneous, or that the proceeding to obtain it was irregular, still it would not be void. As the judgment stands corrected by the order, it is not conclusive upon the cause of action, for a judgment of nonsuit leaves the plaintiff at liberty to sue again for the same cause, and the effect of a discontinuance is no greater. So that in whichever aspect the amendment is regarded, the amended record does not furnish a bar to the subsequent action. The power to amend results from the jurisdiction of the court, as a court of record. ( Lee v. Curtiss, 17 Johns., 86; Lansing v. Lansing, 18 id., 502.) In courts of special and limited jurisdiction, not of record, this rule is otherwise; and, hence, where a case was tried before a justice, without a jury, and he took time to give judgment, it was held that the action could not be discontinued, and that the trial was a bar, whether any judgment was given or not. ( Hess v. Beekman, 11 Johns., 457.) It is proper to say very distinctly, in order to prevent misapprehension, that we give no opinion upon the propriety or abstract legality of the amendment which was made in the instance before us. It, no doubt, required very peculiar circumstances to be shown to render it proper to change the effect of a judgment rendered upon the merits, upon a summary application, in the manner pursued in this case. All that we decide in that respect is, that that court having the power to amend in a proper case, and having amended this record, the amended judgment is the only evidence we can receive as to the disposition of the former action, and that, as amended, the judgment is not a bar to the present action.
The question upon the merits arises upon the denial of the motion for a nonsuit; and, upon reviewing that decision, we must assume that the testimony of Desmond disclosed the true character of the interview between himself and the defendants' secretary. There was no dispute as to the authority of that officer to do what he professed to do on that occasion. It was shown that the Messrs. Audubon were in the habit of sending sets of their works to be bound by Taylor, at his place of business, at No. 10 Spruce street, and of procuring insurance thereon for the short time which it would require to bind and return them. About two months before the contract relied on in this action, they sent certain sets to this binder and procured a policy thereon from the defendants, for $1,000, for one month. That risk expired without any loss having occurred. They then sent to Taylor five sets more for the same purpose, and immediately dispatched Desmond to the defendants, to have those insured for a month, which was, apparently, the time required for binding them. He stated to the secretary the purport of the errand, in a sufficiently precise manner to embrace all the terms of a policy, except the rate of premium they were willing to pay. In the conversation which occurred, reference was made to the former policy of January, upon other sets of the plates: the secretary himself spoke of it, and he said positively that the company would insure the plates upon which insurance was then desired, and would send the policy to the owners, who had a known place of business near by, on the following Monday morning. This, I think, was an agreement to insure presently, and to furnish the written evidence as soon as it could conveniently be prepared. Both parties knew the premium which had been paid for a risk of precisely the same character, two months before. As nothing was said about any change of premium, it was a fair inference of fact that it was to be the same, and that the minds of the parties met upon that amount. This embraced all the essential terms of a perfect contract of insurance upon that risk. The only question, then, is whether, by a fair construction of that contract, the risk was to commence presently or two days afterwards, when the policy was to be sent. I feel confident that the former was what was intended. The property was very valuable for its bulk, and quite combustible, and an owner of such property, who did not intend to be his own insurer, would certainly desire to have it constantly covered by insurance. The delay was for the insurer's own convenience, and not for that of the owners of the property; and if the company were unwilling, for any reason, to enter into a contract which should immediately protect it, it was the secretary's duty, knowing, as he must have done, what the desire of the owners was, to have said that the risk would be taken to commence from and after the future period when the policy was to be delivered. I do not say that, in a case of another character, where time would be less material, and where delay would not involve any hazard, a contract would be considered made after its terms had been settled, and the parties were waiting for a written contract to be drawn up. I put this case upon the peculiar nature of the contract of insurance, the plain intention of the insured and the probable understanding of the parties. Probably there would, in contracts upon other subjects, be a locus penitentiœ until the instrument should be actually signed. It is true that in this case the consideration was not paid, but the owners of the property were ready to pay it, and the natural course of business would be to pay it when the policy should be delivered. In the meantime it was a debt against the owners, for which credit was given until the delivery of the policy. Therefore, assuming Desmond's evidence to be true, I am of opinion that a present contract of the nature claimed was made between the defendants and the owners of the property.
It is objected that notice of the fire and proof of loss were not furnished according to the provisions of the defendants' printed policies. Such a point was not made on the trial. The controversy, up to the time of the motion for a nonsuit, related wholly to the proof of the contract, and it was the duty of the defendants' counsel, if he relied upon the want of these forms, to have suggested the point. The motion for a nonsuit, under the circumstances, was not calculated to suggest to the court or to the plaintiff's counsel any such defect. Besides, the ground taken by the defendant, that no contract of insurance existed, would be held to dispense with the preliminary proofs. ( McMasters v. The Western Ins. Co., 25 Wend., 379; O'Niel v. Buffalo Ins. Co., 3 Comst., 124.
The other exceptions are not well taken. If the defendants actually made the contract imputed to them, it could not be avoided by the consideration that they had not made proper inquiries; and, as evidence upon the question whether such a contract was made or not, it was too remote. The remarks of the judge which were excepted to, were not objectionable. They called attention to the very circumstances which have led me to think that the contract was one for present insurance, and they were quite suitable to be taken into consideration by the jury.
It is said that the verdict is too large. We could not interfere if this was so. But we do not see the matter in the light suggested by the defendants' counsel. The owners of the plates sold them, for the most part, by the single copy, and their price was $300 a copy, making $1,500 for the five sets. This, with interest, after sixty days from the loss, would make the amount of the verdict. The judgment should be affirmed.
DAVIES and EMOTT, Js., took no part in the decision; all the other judges concurring,
Judgment affirmed.
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