#### *Bryan and Maitland *vs.*The New-York Insurance Company.

The *assured*is entitled to recover for a *toted loss*of articles within the *memorandum clause*warranting the insurer *free from average unless*general, although a *few*of the articles be saved; accordingly, where only 27 out of 1970 barrels of corn were saved from the wreck of a vessel, at a peril and expense not justified by the value of the property saved, the loss was *held*to be *total,*and not merely *partial.*

This was an action on a marine policy of insurance, tried at the New-York circuit in March, 1841, before the Hon. Philo Gridley, one of the circuit judges.

The insurance was upon all kinds of lawful goods and merchandizes laden or to be laden on board vessel or vessels of the assured. *Corn*to the amount of 1970 barrels, of the value of $1773, was laden on board a schooner at *Windsor,*in North Carolina, to be carried thence to New-York. The vessel set sail from Windsor, on her voyage to New-York, on the 28th August, 1838, and on the 11th September following, she reached Beacon Island Shoals, and was wrecked in a gale of wind. The vessel was abandoned to the commissioners of wrecks, who sold the *chance*of recovering the corn to purchasers in lots, at a trifling sum per barrel. Some of the purchasers succeeded in recovering *twenty-seven barrels*of the corn. Others who had made purchases declined undertaking to recover the corn, considering the expense and risk too great. All the witnesses agreed in stating the condition of the corn to have been *desperate;*that they regarded the wreck as a total loss, and that the trifling amount recovered, wag obtained at great peril, which would not have been encountered but for the hope of obtaining the corn at a mere nominal price. The policy contained the usual *memorandum*clause, warranting certain articles of property *free from average unless general,*specifying amongst others, *grain of all hinds.*A verdict was taken for the plaintiffs for $2,000, subject to adjustment, and subject to the opinion of the court on a case to be made.

**B. D. Silliman,*for the plaintiffs.

*471
      *R. Emmet,*for the defendants.

*By the Court,*

Nelson, C. J.

The cargo in question being within the memorandum which exempts the insurers unless the loss is total, that is, unless specifically and physically destroyed or lost, the only question here is, whether under the circumstances, the corn is to be regarded as falling within the rule. See 14 *Johns. R.*145, *and cases there cited.*I am of opinion it is. It is true, after the abandonment and sale of the *chance*of recovering something from the wreck, the purchasers in two or three instances, by extraordinary efforts and risk, saved a few barrels. But all agree that the risk and expense exceeded the value of the property recovered ; and several of the purchasers even preferred losing what they had paid, rather than encounter the hazards. The witnesses also concur in the fact, that the wreck and loss were complete, and nothing would have tempted the purchasers undertaking to recover any portion of the corn, but the chance of acquiring it for a trifling sum—the hope of extraordinary gain.

That a comparatively small amount of the article should have been saved in specie by such means, and under such motives, I think should not be regarded as proof that the loss was but *partial.*It was in fact total, as much so as if the cargo had gone to the botom of the sea: upon every reasonable calculation, the amount saved was by mere accident and chance.

Judgment for plaintiff.