#### Webb *v.*The National Fire Insurance Company.

Capstans of locust partly prepared, for vessels which the insured was building, were held to be within his policy, “ on his stock of ship timber, including locust, Sic.”

On the construction of a policy of insurance against fire, effected on a ship builder’s stock of ship timber, “ contained in the yard bounded by” three specified streets and the river, (in the city of New York,) proof was received to the effect that it was usual for the owners of ship yards in that city, to keep their stock of timber on the side walks, and in the streets in the vicinity of their yards, as much so as within the yards. Some of the timber of the insured, lay across the side walks, partly in the street, and partly on the land of the insured, which was only partially fenced. *Held,*that the evidence was properly received, to show what was the meaning of the terms “ stock of ship timber in a ship yard,” as used by the parties in the policy, and to define the term, yard of a ship builder. And there being no contradictory testimony, *held,*that the insured was entitled to recover for the loss of his timber, situated in the streets adjacent to his land.

(Before Oakley, Ch. J., and Vanderfoel and Sandfokd, J. J.)

May, 1849.

Assumpsit on a policy of insurance, tried before Sandford, J. in February term, 1849. The policy was dated August 20th, *4981847, and thereby the defendants insured the plaintiff for one year, *“*against loss or damage by fire, to the amount of(here followed the written portion of the policy, which was in the original, thus expressed and arranged, viz.)

“ Six thousand, three hundred dollars, viz. ■

“ $3500 on his stock of ship timber, including planks, futtocks, knees, locust, standards, and stageings.

300 on his moulds and patterns.

500 on tree nails.

500 on blocks, falls, clamps, screws, augers and tools, contained in the yard and buildings therein, bounded by Sixth and Seventh streets, and Lewis street, and East river.

500 on his two story frame building, known as his office, situate in said yard. •

500 on his draughts, books, papers, moulds and models, contained in said office.

500 on his stock of iron and tools, contained in the blacksmith’s shop, situate No. 302 Lewis street.

$6300 one year, *a*1-| p. c. - - - - $94 50

It was admitted on the trial, that a fire occurred on the 8th of April, 1848, by which the property alleged to have been covered by the policy, was" damaged; and that on the company being notified, the parties appointed Joseph Bishop and William . Mackay, to appraise such damage. The appraisements made by them as after mentioned, were delivered to the company, and were received by the latter as preliminary proofs, and also as evidence of the loss occasioned by the fire.

■ The first appraisement was produced and read to the jury, in these words, viz.

“ We estimate the damage by fire which occurred on the night of the 8th inst., to the property of Mr. Wm. H. Webb, at his ship yard, situated at the corner of Lewis and Seventh streets, . as follows:

*499On timber lying in Seventh and Lewis streets, adjoining the buildings, at.....$1160 00

“ timber and plank lying in the yard, - - 1210 00

“ moulds and patterns,...... 300 00

“ treenails,....... 500 00

“ blocks, falls, tools, &c.,..... 500 00

“ draughts, books, papers, models, &c., contained in

the office,....... 500 00

Joseph Bishop,

William Mackay.

New York, April 11th, 1848-.”

Mr. Bishop, as a witness for the plaintiff, testified :

“We were requested by the parties, or by one of them, I cannot say which, to make a separate estimate of the plank and timber that was prepared for the two steamships then building by Mr. Webb, for Howland & Aspinwall, we accordingly made an appraisement of this portion of the damaged property. This is the original.”

It was then read to the jury as follows :

“ We estimate the damage by fire to the timber, &c., prepared for the vessels now building in the yard of Wm. H. Webb, at six hundred and fifty dollars.

(Signed as before.)

New York, April 12th, 1848.”

The witness further testified :

“ It was also requested to appraise the damage to six capstans that were in Mr. Webb’s building in his yard. These capstans were partly made, and Mr. Mackay and myself appraised them at $215.”

This last appraisement was then read in evidence as follows :

■ “ In addition to the estimate furnished 11th inst., there was in the building six capstans partly finished, valued at two hundred and fifteen dollars.

(Signed as before.)

New York, April 12th, 1848.”

*500The witness further testified, that ship builders have been in the practice of having their stock of timber in the street in the vicinity of the ship yards, as much so as in the yard. Such has always been the practice since the witness has known anything of ship building in this city, and that has been for about twenty-five years.

This evidence of practice was objected to in due season by the counsel for the defendants as incompetent. The objection was overruled by the court.

The witness further testified : Capstans are made of locust, sometimes they are made partly of mahogany, but the capstans in the plaintiffs yard that were damaged by the fire were of locust. The stock specified in our appraisement consisted of what was wrought and prepared by the workmen as timber and stock; and also of what was unworked. It was usual to store or keep in the yard and on the street, timber and plank indiscriminately. We keep the stock just where it is most convenient to place it; we frequently have the heaviest of the timber in the street; Mr. Webb’s ship yard was not enclosed by any fence or enclosure. It had been enclosed at some period, but was not so then.

Ship yards are not usually enclosed. Mr. Webb’s yard at some former period of time probably had been fenced in, because here and there were a few feet of old fence still standing. All of the timber that was burned, (and which is in dispute,) was on the side walks adjoining the yard on Lewis and Sixth streets.

William Mackay, on the part of the plaintiff, testified, that he was one of the firm of Westervelt & Mackay, ship builders of this city, and made the several appraisements with Mr. Bishop: that he has been engaged in the business of ship building for some twenty-five years past, and is acquainted with the course of business in this city. It is the practice of ship builders to keep their stock in their yards, and on the side walks, and in the street in the vicinity. Such has been the practice as long as the witness can remember.

(This evidence of practice was objected to as before.)

Being cross-examined, he testified: the timbers, the damage *501to which is valued at $1160, lay on the sidewalk in seventh street, and the ends of some of the timber laid in the yard and some projected over the side walk, part projected inside and part outside of the fence, (was partly in the yard.) Cannot now say what proportion of it did project in the yard. There was no fence; the timber that projected and which was on the side walk, did not form a fence or enclosure. It was part of the plaintiff’s stock. The yard was not enclosed; there might have been a few boards nailed to posts here and there at intervals.

William E. Kellogg, the secretary of the company, on the part of the defendants, testified, that Mr. Webb and the president of the company, adjusted the loss on the office which was burnt at $400. That Webb signed a paper indorsed by the witness on the first appraisement, in these words, viz.:

“ I hereby limit the loss under my policy for lumber in the yard, to five hundred and sixty dollars, having received from another source the difference between that amount and the twelve hundred and ten dollars claimed as loss for lumber in the yard as per the within appraisement.

New York, May 18th, 1848.”

That witness was present at the conversation between Mr. Webb and the president respecting this deduction of $650. Mr. Webb stated, that Howland & Aspinwall had received payment from one of the Fire Insurance Companies damage claimed by them upon policies upon their two steam-ships which was then building for them, and that they had given to him a part of the amount so received by them; and he stated that the money so received from another source, and witness believed it was under or from Howland <fc Aspinwall, had been to cover part of the items composing the sum of $1210. That of the damage of stock in the yard amounting to $1210, he had received $650 from Howland & Aspinwall, and that he would only claim for the balance of that item, viz., $560. He withdrew his claims for the six capstans contained in that schedule. The only subject of dispute was the timber in the street; the other matters were all settled.

*502Being cross-examined, the witness says : My impression was that Mr. Webb had procured payment for the damage to the six capstans from Howland <fc Aspinwall, or the parties for whom he was building the steamers. I understood that the claim for the capstans was included in the $650, and that it was withdrawn by Mr. Webb. The president agreed to pay him for all his claim except the lumber in the street.

Being shown the endorsement upon the appraisement by which the plaintiff limited his claim to $560 he says: My recollection is that the six capstans were included in the amount therein referred to as having been received from another source. I so understood it, and that it was a part of the $650, withdrawn from the claim of $1210.

Thomas W. Thorn, the president of the company, testified, on the part of the defendants, that Mr. Webb and he agreed upon the appraisers. After the appraisements were handed to witness, he had another conversation with Mr. Webb, who in the course of it said he had received from Howland <fc Aspinwall a sum of money on account of the damage to their two steamers. Witness cannot say what the amount was, but it strikes him it was over $2000 from them. The result of the conversation was, that he agreed to deduct from the claim of $1210, the sum of $650. Witness understood he had received his pay from H. <fc A. for the capstans and all the manufactured timber for those ships. He limited his claim for the balance to $560. He gave up the claim for the capstans. The only thing about which we differed was the timber on the street. He understood that the $650 covered all the work upon timber or lumber for the ships then building for H. & A. After they had adjusted the other claims, witness told Webb that he would not pay him for the timber on the side walks in the street. Witness offered to pay Webb the sum of $2760, viz. for timber in the yard, $560; moulds and patterns, $300 ; treenails, $500 ; blocks, falls and tools, $500; office, $400; on his draughts, &c., $500.

It was then shown that the defendants tendered to the plaintiff the $2760, with interest, and the costs of suit, in September, 1848; and the plaintiff received the same on account.

*503Joseph Bishop, being re-called by the plaintiff, testified (the counsel for the defendant objecting, and the objection being overruled,) that he and Mackay made a separate estimate of the various items of the damage forming the sum of $650, included in the $1210. He identified a paper shown to him as the original, made by him and Mackay at the time, and it was read to the jury as follows ;

That Webb was then building the steam ships Panama and California, at the foot of Sixth and Seventh streets, for How-land & Aspinwall, and was also building the steam ship Cherokee, at the foot of Third street.

The court charged the jury that the principal question between the parties was whether the damage to the stock lying outside of the yard, and amounting to $1160, was covered by the policy, and for the purpose of the trial, the court instructed them that the policy did extend to and cover the damage to such stock.

The other question in dispute relates to the damage to the six capstans. The defendants insist that the capstans are not covered by the policy, and if they be, that the damage thereto was included in the sums received by Mr. Webb from other sources. The court instructed the jury that the policy did extend to and protect the capstans, and submitted to the jury the questions of fact, whether the damage to the capstans had been made good to the plaintiffs as insisted by the defendants. He directed the jury in case they found the question in favor of the plaintiff to find a verdict for the sum of $1500, otherwise to find a verdict for the sum of $1250. (The counsel on both sides having agreed to adjust the precise amount of the claim *504after the construction of the policy had been settled by the court.) The court further, at the request of the defendant’s counsel, charged the jury that if, on the evidence, they believed the plaintiff withdrew his claim for the capstans, having received the value thereof under the policies effected by the owners of the vessels, though they were not included in the items making up the amount of $650, the plaintiff was not entitled to reassert his claim or to recover for them.

The jury found a verdict for the plaintiff for $1500 damages.

The defendants moved for a new trial.

*J. H. Lee*and *J. R.*Whiting, for the defendants.

*F. B.*Cutting, for the plaintiff.

By the Court. Oakley, Ch. J.

All the claims arising from this loss, were amicably settled between the parties, except the plaintiff’s claim for the capstans and for the timber situated on the side walks adjacent to the premises called the ship yard. At the trial, the inquiry as to the capstans was two-fold; first, whether they were within the policy; and second, whether the plaintiff had been paid his loss in that respect by the owners of the ships which he was building, and for which the capstans were preparing. The judge held at the trial, that they were within the terms of the policy, as timber in process of being wrought into vessels; and this was undoubtedly correct. The question as to the plaintiff’s having received his loss upon the capstans from another source, was submitted to the jury, who were instructed, in accordance with the defendants’ request, that if he had so received it, he could not recover it from them. The jury found that the plaintiff had not received this portion of his loss from any quarter, and we see no reason to interfere with their conclusion.

■ The main question in the case, arises on the other part of the claim, and is, whether the timber on the side walks was within the stock insured by the policy. • The defendants contend that the risk is confined expressly to timber in the yard as bounded *505by Sixth and Seventh streets, Lewis street, and the East river; and that the court is to consider the sides of the streets and the margin of the river, as having been deemed the boundaries of the yard, as if the words to be construed were found in a conveyance of land.

The plaintiff’s premises were an unfenced yard. Some fence remained along portions of the yard adjacent to the street, while along other portions there was none. The plaintiff offered to prove, and did prove, that it was usual for the owners of ship yards in this city, to keep their stock of timber on the side walks and in the streets in the vicinity of their yards, as much so as within the yards. It further appeared that the ends of some of the sticks of timber, embraced in the appraisal as timber outside of the plaintiff’s inclosure, in fact projected into the inclosure, and across the line where the fence had formerly been. This testimony was objected to by the defendants, but it was received by the judge, and it was properly admitted. The object of the evidence of usage, (as it is called,) in these cases, is to ascertain what is the meaning of the language used by the parties in their contract; whether by the words “ stock of ship timber in a ship yard,” was meant a yard bounded by lines exactly defined, and limited by streets or other lineal land-marks, or a yard as it was in fact used by ship builders in conducting their business.

There was no good objection to the evidence offered on this point; and it being uncontradicted, it was sufficient to establish the usage, and to prove that a ship yard embraces the ground adjoining the inclosure, so far as it is used for keeping the stock of ship timber there provided for use.

There is another point of difficulty to the defendants, if the usage were excluded: viz,, whether the insurance is at all confined to stock in the plaintiff’s yard. On reading the policy, it will be perceived that there is no such limitation in the clause relating to the stock of ship timber, &.C., on which $3500 were underwritten ; and three new lines, with as many distinct subjects of insurance, intervene before the yard is mentioned.

It is a serious question whether the yard, as thus mentioned, applies at all to the first subject insured, and if it were neces*506sary to decide the point, we should be inclined to hold that it does not. We are satisfied, however, that the verdict should be maintained on the other ground, and the motion for a new trial must be denied.