#### Pierce L. Wiggin *et al. versus*The Mercantile Insurance Company.

A cargo consisting of lumber and other articles, was shipped by a merchant on board the plaintiff’s vessel, and consigned to the master, he paying freight, *viz.*three fifths of the lumber and for the other articles a sum of money. The ship and cargo were totally lost on the voyage. It was *held,*that a policy effected by the owner of the vessel *on property on*board, covered the three fifths of the lumber, but not the freight of the other articles.

Assumpsit on a policy of insurance, dated January 30, 1827, by which P. L. Wiggin and W. Tate are insured, one half each, 800 dollars on *property on board*the schooner Paragon, at and from Wilmington, N. C., to port or ports on the globe for five months, the risk to commence January 12, 1827.

The parties agreed, that at the time of effecting the insurance, Wiggin was the owner and Tate the master of the Paragon. By an agreement between Wiggin and Tate, made *277in 1825, Tate agreed to take the schooner and employ her in the freighting business, and to pay the expense of manning, victualling, loading, and unloading her ; and Wiggin agreed to pay the expense of keeping her in repair ; and the whole amount of freight and other earnings was to be equally divided between them.

*Nov. 6th.*

On the 13th of January, 1827, Lazarus & Whitmarsh shipped on board of the Paragon a large quantity of shingles, lumber and other articles, to be delivered at Porto Rico, or a market, to the master or his assigns, “he or they paying freight for said goods, *viz.*: — three fifths of the lumber and shingles, for the pork and naval stores $1,25 per bbl., and for the rice *01,80*per cask ; the net proceeds of the whole to be vested in produce and brought back free of freight as per agreement.” Wiggin and Tate had no' other property on board. In February, 1827, the schooner and cargo were totally lost by the perils of the seas, and upon hearing of the loss, the plaintiffs made an abandonment.

By a policy of the same date with the one in suit, the de fendants insured M. Brimmer for whom it might concern, 1450 dollars on property on board the schooner for the same voyage. That sum was the invoice value of all the merchandise mentioned in the bill of lading; which was abandoned to the defendants, and they paid a total loss to Lazarus & Whit-marsh. The property mentioned in the policy effected by Brimmer consisted of the right and interest which Lazarus & Whitmarsh had in the merchandise, and was not intended to include the property and interest, if any, which Wiggin and Tate had therein.

According as the opinion of the Court should be upon the foregoing facts, the plaintiffs were to be nonsuited or the defendants defaulted.

*Merrill*and *King*said that the plaintiffs had an insurable interest in the property; that *property*is *nomen generalissimum,*and that the plaintiffs’ special interest might be insured under a general term,

there being nothing in the nature of their interest which would enhance the risk. *Godin*v. *London Ass. Co.*1 Burr. 489 ; *Wolff*v. *Horncastle,*1 Bos. & Pul. 316 ; *Brough*v. *Whitmore,*4 T. R. 206; *Oliver*v. Greene, 3 *278Mass. R. 133 ; *Locke*v. *North Am. Ins. Co.*13 Mass. R. 61 ; *Bartlett*v. *Walter,*ibid. 267 ; *Russell*v. *Union Ins. Co.*4 Dallas, 421 , *Seamans*v. Loring, 1 Mason, 128 ; *Dumas*v. *Jones,*4 Mass. R. 652 ; *Holbrook v. Brown,*2 Mass. R 280; *Wells v. Philad. Ins. Co.*9 Serg. & Rawle, 103.

*Saltonstall, contra.*

The question is not whether the plaintiffs had an insurable interest, but whether their interest is prop erly described. By the terms of the bill of lading, they could not have any but a contingent interest in the lumber and shingles, until a delivery at the port of destination, and in regard to the other articles their interest was in freight, in the strict sense of the word. There may be a total loss of freight at the same time that there is only a partial loss on the goods. There can be no abandonment for a total loss of freight. The nature of the plaintiffs’ interest did therefore affect the risk, and it ought to have been specified in the policy. If the plaintiffs had procured a policy upon freight, they might have recovered upon it an indemnity for their whole loss. 1 Phillips on Ins. 64 ; *Dodge*v. *Union Mar. Ins. Co.*17 Mass. R. 471 ; *Green*v. *Royal Exch. Ass. Co.*1 Marshall’s R. 447, and 6 Taunt. 68 ; *Faris*v. *Newburyport Mar. Ins. Co. 3*Mass. R. 476 ; *Lucena*v. *Crawford,*5 Bos. & Pul. 312; *Warder*v. *Horton,*4 Binney, 529 ; *Riley*v. *Delafield, 7*Johns. R. 522.

The opinion of the Court was afterward drawn up by

Parker C. J.

It is objected that the plaintiffs had no insurable interest in the property on board the vessel; and if they had, that the interest not being property, it could not be insured as such. And the reason assigned is, that their inter est was only in the compensation for carrying the cargo which, if insurable, should have been insured as freight.

We agree that freight cannot be insured under the name of property, but we think the contract by which the insured undertook to carry the cargo, gave them an interest in that cargo, different from freight, and well coming within the term proper*ty.*The plaintiffs were to take a cargo of lumber on board and transport it to Porto Rico, for which they were to have in lieu of freight, three fifths of the lumber. Now we think that on the lading of the lumber at Wilmington, the plaintiffs became entitled to a proportion of it under the con *279eraot; they had an interest in the cargo itself; so that upon its arrival at Porto Rico, their right to three fifths became absolute. How was the right defeated ? Only by the perils of the sea, which were insured against. Hughes, the latest English writer on insurance, says *(p.*30), that “to be interested is to be sivuated, in regard to the thing insured, so as to have benefit from its existence or prejudice from its destruction. ” Nothing could better come within this definition than the inter est which these plaintiffs had.

Again, the same writer says, “ in general, an insurable interest must be either a right of property, or a right derivable out of some contract concerning the thing insured.” This too meets the case of the plaintiffs, who by virtue of the contract concerning the lumber had an interest in it.

They had then an insurable interest. Was it property *t*They had property in three fifths, as much as the owners of the cargo had in the residue. It is said however, that it depended on the contingency of the vessel’s arriving at Porto Rico ; but it was, nevertheless, property, subject to be defeated by the not happening of the contingency. While on the voyage, it was their property, secured by the policy which was to protect them from the contingency which would defeat it. It was not necessary to state the kind of property, unless asked ; as was decided in the case of *Locke*v. *North Am. Ins. Co.*13 Mass. R. 61.

We think the plaintiffs are entitled to recover for their proportion of the value of the lumber described in the bill of lading, but not or the freight payable in money upon the other articles