#### The Home Insurance Company, plaintiffs and respondents, *vs.*The Western Transportation Company, defendants and appellants.

1. By the abandonment by the owner of goods insured when damaged by perils insured against, of the *spes recuperandi*therein to the underwriter, the latter is entitled, on paying the loss, to be subrogated to any right of action of such owners against third parties for causing such damage by their negligence.

2. A settlement by consignees with underwriters, upon the basis of a total loss, in case of goods insured when damaged by perils insured against, without regard to the proceeds of such damaged goods received by the agent of the underwriter on a sale by him, is evidence from which an abandonment of such goods may be inferred.

3. The payment of the loss as a total one alone, entitles the insurer to be subrogated to the rights of the consignees, so far as such loss was concerned.

4. A settlement of a claim stated in the receipt to be for “ general average,” is not applicable to a claim against carriers, of damages for a *loss by negligence,*

(Before Robebtson Ch. J. and Mokell, J.)

Heard October 18,1866;

decided December 31,1866.

This action was brought to recover damages for injury to a cargo of wheat on board of a vessel on the Erie canal, in the year 1860, caused by the negligence of the defendants in their transportation of it as common carriers from Oswego to New York. The plaintiffs claimed such damages by a title derived from the consignees of such cargo, (Messrs. L. Roberts *&*Co.) *258and acquired before the commencement of this action. The plaintiffs insured such cargo on its voyage, under an open policy. The defendants gave a bill of lading for its delivery absolutely to' the consignee in the same condition as when shipped, “ damage or deficiency in quantity to be deducted from the charges.” The cargo was damaged by water near a place called Fort Plain. An agent of the defendants (Stout) immediately informed the consignees of the injury. An agent of the latter (Higgins) forthwith notified the plaintiffs thereof. The cashier and general agent of the defendants (Clapp) also telegraphed, shortly after, to an agent of the plaintiffs (Cary) to “take, charge of the cargo on account of whom it might concern.” Such agent (Cary) after removing the cargo from the boat, during the same year, sold the damaged portion, (1781$£ bushels,) with the approbation of an agent of the defendants (Chase) and in the following spring transhipped the residue by another vessel (the *Northamptonshire)*to Hew York, where it. was received by the consignees. They, by their agent (Eequa) gave a receipt for such grain on the 9th of May, 1861, to the defendants’ agent (Stout) in the following words and figures :

“Eeceived, Hew York, May 9th, 1861, from the Western Transportation Company, per boat *Northamptonshire,*in good order, as marked in the margin, subject to the terms and conditions of the notice of the arrival of this property from said company, herewith served, fifty-seven hundred and twenty bushels of wheat, less seventeen hundred and eighty-one sixteen sixtieths bushels received by consignees at Fort Plain from boat *Lyman Dennison.”*

On the back of such receipt, when signed, were the following words and figures:

Fr’t from Oswego, 3,938fjj- bu. C. B. ..... $590 81 87 81 457 60 13 96 Advance charges, 457 Days interest on $457.60, 1149 38

*259Towing, . ............. $8 00

1557 38

Less for general average,......... 50 00

$1107 38

56ff bush, short $1.30,......... 72 85

• $1034 53

On the 20th of May following, the plaintiffs, after receiving the proceeds of the sales of the damaged grain, paid the consignees the full amount of their loss, ($2600,) and the latter thereupon executed a written assignment to the former of all their claims upon the. master of the vessel, by which such grain was shipped, or any other person, for damages thereto.

The complaint alleges the shipment of the grain in question ; the undertaking to the consignees by the master of the vessel in which it was shipped, as agent of the defendants, to transport it safely ; and the injury by their negligence on its voyage. Also the assignment by the consignees of all their claims, for such damage, before the commencement of this action. The answer takes issue upon all the allegations in the complaint, except so far as the same are admitted therein. It then alleges that certain advances made by the shipper were to be refunded in case the vessel by which such grain was shipped was frozen in the canal so as to be unable to perform her voyage. That the vessel was compelled to suspend the prosecution of her voyage by such freezing, of which notice was given to such consignees. That thereupon the consignees and the plaintiffs took possession of such wheat, and received and stored it at the place of detention. Also that the damage to such cargo was caused by drawing off the water of the canal by the state officers having charge thereof. Also that before the assignment to the plaintiffs, of the claim in suit, the damage and injury to such cargo was agreed upon, adjusted and settled between the defendants and "the consignees, which included the cause of action set out in the complaint.

All the issues in the action were referred to a referee to hear *260and determiné. Ho evidence was given on the trial before such referee of the cause of damage to the cargo in question.'

On such trial the defendants’ agent, Stout, testified in substance, that he made a settlement with Eequa, the agent of the consignees, L. Eoberts & Co. Its figures were on the back of the receipt, which was that before mentioned, (dated May 9, 1861.) They were a statement of the settlement in' full. While making such settlement, the *matter of the transfer of a portion of the cargo of the Lyman Dennison to the vessel by which it was finally brought to New York (the*Northamptonshire) *was talked over.*A claim was made for a deficiency of fifty-six bushels : also *for damage to the cargo in addition to the sum of*$50, mentioned in such statement, which was allowed. Other claims were made which he refused. On being cross-examined, .he stated that he then knew that part of the cargo of the L. Dennison was not there to deliver, and first that he did not, and then that he did, know that it had been sold or damaged and taken out and sold; that they talked about the part not delivered, but he couldn’t say what it was, as it was four years previously. Mr. Eequa1 claimed for the full amount of the difference between what was delivered and the amount in the bill of lading, and no other claim was referred to. The witness had no figures before him of the damage at Fort Plain. The item in the bill *“ less for general average,”*was what he called the damage. He could not tell how they got at the figures. The clerk of the consignees (Eequa) testified that he signed the receipt; the business was done between Stout and himself, but he *did not recollect*that any thing was- said or done about the damaged part of the cargo, or any discussion of the claim. He thought it was not embraced. He also testified it was customary to make a deduction in such cases. He did not know why. An adjuster of losses (Higgins) testified that “ there was always made a deduction of $50 from the freight bill on cargoes of grain * * irrespective of the extent of the damage or amount of loss it was “ generally deducted by the consignee out of the freight in the regular course of business.”

*261On the trial the witness, Requa, testified that he paid a certain sum ($257.38) which was the balance due according to the settlement and took a receipt. A blank form of a policy of insurance purporting to be made by the plaintiffs but not signed by any person, without any statement in it, of any property, amount or subject insured, any voyage, duration of the risk, or premium, was introduced in evidence and its admission excepted to by the defendants, but no motion was made to strike. it out. It contained a provision that there was to *be no abandonment of the subject insured,*and another that “ should any loss or damage under that policy be occasioned by any other vessel, person or persons, in such manner that” the latter “ should be liable therefor, then all claims for such loss or damage should be assigned to the company for their benefit, in proportion to the amount of such loss sustained by them.”

The referee made a report whereby he found as facts *;*the shipment of the cargo, its damage by water, its abandonment to the plaintiffs, the taking possession of it by them, the sale by them of the damaged *wheat;*the reshipment of the residue to New York, the receipt thereof by the consignees, the assignment by such consignees of their claim for damages in consideration of the payment by the plaintiffs to them of their loss ($2461.98) and a settlement three days afterwards by the defendants with such consignees for freight and charges, the former receiving and giving a receipt for the balance due, in which an allowance was made for a certain number of bushels (56-iVo) short delivered. He also stated therein, as matter of law, “that by reason of” the abandonment of the goods to the insurers, their payment of the loss on their policy and “ by virtue of” the assignment to them, they were subrogated to all the rights of the consignees on the bill of lading, and that the circumstances of the case constituted notice to the defendants of the intervening rights of the plaintiffs *as insurers*of the property injured, and their settlement with the consignees “ was without effect on the previously agreed rights of the plaintiffs, and did not adjust or settle any part of the claim *262made in this action and that the plaintiffs were entitled to recover against the defendants the amount of such liquidated damages, with interest.

Exceptions were taken to such findings by the defendants, and they appealed from the judgment; which appeal was now heard.

*J. Hubbell,*for the appellants.

I. The facts found by the referee are wholly unsupported by the testimony in the case.

1. There is not a particle of proof that the wheat in question was abandoned to the plaintiffs, as insurers, by the consignees. ,

2. The policy of insurance introduced, expressly provided that there should be *“no abandonment of the subject insured.”*

3. Neither of the parties treated it as a case of abandonment, but on the contrary, the consignees retained their ownership of the wheat, which was acquiesced in by the plaintiffs. There could be no abandonment under the circumstances of the case. A party is entitled to abandon only where there has. been a total loss. Even then the abandonment does not have the effect to subrogate the insurer to the rights of the assured, unless it is accepted. (2 *Pars. Marit. Law,*416. *N. Y. Ins. Co.*v. *Roulet,*24 *Wend.*513.) There was nothing of the kind in this case, and the referee’s finding in that respect is, it is respectfully submitted, wholly erroneous.

4. As to the settlement between the consignees and the defendants, the finding of the referee is, if possible, still more in conflict with the facts proved. By ignoring the fact, as evidenced by the written paper signed by Roberts & Co. on the 9 th of May, containing the settlement between the parties on that day, and fixing upon the 23d of May, he makes it appear that the settlement referred to was made after the assignment from Roberts & Co. to the plaintiff; when the settlement had been made and consummated eleven days previously.

II. Upon the finding of such matters of fact, the referee bases his legal conclusions. The judgment should, for this *263reason,- be reversed. This' is not a case of conflict or preponderance of testimony, which is conceded to be all one way. But the referee has wholly mistaken or overlooked the conceded and undisputed facts of the case, and upon these erroneous findings of facts he has come to an erroneous conclusion of law.

III.' The plaintiff’s were not entitled to recover except under the title made in the complaint as assignees of L. Roberts *&*Co. They made no claim to recover in any other capacity ; and on the trial produced, as the foundation of their right to recover, the assignment from L. Roberts & Co. The plaintiffs could not possibly recover, under the complaint, simply as assignees of any cause of action which Roberts *&*Go. had on the 20th day of May, 1861. The latter had already settled and adjusted the matter so far as they were concerned, and if they had been the plaintiffs there can be no manner of question as to the effect of this settlement. The referee gets rid of this difficulty by allowing the plaintiffs to recover in their own right independent of the assignment. To do this the referee assumes that the plaintiffs were entitled to recover as abandonees ; and next, that the settlement as between the defendants and Roberts & Co. was fraudulent, as having been made after the latter had formally assigned the cause of action to the plaintiffs. It is submitted that be is wholly mistaken in his legal propositions even if the facts had been as he- finds them.

1. The mere fact of abandonment could not vest any title or right of action in the plaintiffs as insurers-.- The abandon^ment must have been accepted, which would have made the plaintiffs liable to the consignors for a total- loss. *(See cases before cited.)*But there was no such acceptance. The plaintiffs never put themselves in that position, but on the contrary paid a partial loss only, and Roberts & Co. continued in the ownership and possession of the property.

2. The settlement referred to could not be attacked in.this collateral manner. The plaintiffs should have1 instituted proceedings to have it set aside in an action brought for that pur*264pose. It was not competent for them to bring an action based entirely on the assignment from Roberts *&*Co., which conveyed to them only such rights and claims as they had at the date thereof, and on the trial claim that the assignment covered other claims which Roberts & Co. had previously settled.

3. There was nothing in the circumstances of the case which gave the • defendants notice of the intervening rights of. the plaintiffs, as stated by the referee.

IY. The settlement made on the 9th of May, 1861, by and between Roberts & Co. and the defendants, was a fair, just and equitable one, and ought to be sustained.

1. The consignees and the insurance company (the plaintiffs in this action) took possession of the cargo, a portion of which was claimed to be damaged more or less. After selling part they placed the balance in store, and in the spring redelivered the unsold portion to the defendants, who delivered it in New York as addressed, to the consignees. It was subject to the payment of freight and charges, *u damage or deficiency in quantity, if any, to be deducted from charges by consignees.”*The defendants, as carriers, and Roberts *&*Co. as consignees of the original cargo, made a settlement at once of the matters relating thereto. Three items alone were to be adjusted: 1. The wheat taken from the boat by the insurance company, at Fort Plain; 2. A claim for shortage, amounting to fifty-six bushels ; and 3. A claim for damage. The wheat taken and sold at Fort Plain by the insurance company was admitted in effect to have been taken by the consignees. The receipt given by Roberts *&*Co. was for the full amount of the cargo, and in terms admits the receipt by the consignees of the quantity sold at Fort Plain. The claim for shortage and damage was adjusted, leaving due to the defendants, after making allowances, $1034.53.

2. This settlement was consistent with the terms of the original bill of lading, which provided that damages and deficiency in quantity, if any, were to be deducted from charges by the consignees, &c.

Y. It was a practical construction and agreement by the *265parties themselves as to the extent and limit of the liability of the defendants, and should prevail against the plaintiffs who come into this court to enforce a mere speculation, having no just claim in equity, and after being paid the premium for insuring the property in question, a loss having happened within the terms of the policy, which they were obliged to pay, attempt to saddle that loss upon the defendants.

The construction so given by the parties was the strictly legal one.

1. The boat being detained and frozen in the canal at Fort Plain, the consignees, and the plaintiffs as insurer's, in taking possession of the, cargo at that place, terminated the original contract for the carriage to New York. The contract was ah entirety, and imposed upon the defendants the obligation to deliver in good order in New York, but not elsewhere, as soon as practicable after the opening of navigation. It was quite competent for the consignees to take the property short of the place of destination, especially with the consent of the defendants. But by so doing they terminated the original contract. Most emphatically is this the case when it appears that they actually sold more than one third of the cargo, and placed ,the balance of it entirely beyond the reach of the carriers for several months. 2. It is claimed that the portion of the cargo which was sold was damaged more or less. That does not affect any question in this case. The defendants were bound to transport this property and deliver it to the consignees at the place of destination in as good order and condition as when taken on board.' This they are prevented from doing by the act of the consignees themselves, who took possession of the property before it reached its destination. The defendants had nothing to do with the condition of the property when so taken from them. The consignees were precluded from making any claim or question as to its condition. The contract was terminated not only as to the transportation to New York, but as to the obligation to deliver in good order. It was not to be enforced in part and abandoned in part as *266might suit the convenience of either party. *(Smyth*v. *Wright,*15 *Barb.*51, *and cases there cited.)*

3. The consignees, when they came to receipt for the property, included the entire cargo as having been received in good order, making special mention of the quantity sold by the insurance company at Fort Plain, as having been received by the consignees at the place of destination.

VII. So far, therefore, from there being any thing in this settlement suspicious or fraudulent, it was the adjustment of a business matter between business men, acting with an intelligent understanding of the rights and liabilities of each other. It is creditable to Roberts *&*Co. that they do not seek to get away from this settlement. They have acquiesced in it from the beginning, and have not been heard to complain of it. It has, however, been reserved for the plaintiffs to discover that the firm of L. Roberts & Co. either allowed themselves to be overreached in this settlement, or combined with the defendants to defraud the plaintiffs by means thereof. Neither of which is true. If there has been overreaching or improper practices by any of the parties to this suit, it is justly chargeable upon the plaintiffs, who procured the assignment of a claim which had been adjusted and settled between the original parties, for -the purpose of harrassing one of them by an expensive litigation.

VIII. The telegram from Clapp to Carey is entirely consistent with this view. He was directed to take charge of the cargo' for account of whom it might concern. But he was not authorized by that telegram to sell any portion of it. The sale whs made by the plaintiffs for their own purposes, by which the defendants lost their freight upon it to New York. This was the only effect of the transaction.

IX. The referee erred in admitting the policy of insurance in evidence. As between the parties it was *res inter alios*acta, and wholly irrelevant in any view of the case. The judgment should for this reason be set aside.

*267*W. A. Butler,*for the respondents.

1. The defendants, having received, the wheat, as common carriers, and given a general hill of lading, were liable, as insurers, against all losses not directly produced by the act of God, or of public enemies. No proof of negligence is necessary. *(Kemp*v. *Coughtry,*11 *John.*107. *Miller*v. *Steam Nav. Co.,*6 *Seld.*431. *Merritt*v. *Earle,*31 *Barb.*38.) The defendants offered no evidence to prove the defense set up in the answer touching the cause of the damage. ' The presumption of negligence, arising from the fact of damage, was, therefore, wholly unrebutted.

II. The plaintiffs, as insurers of the owners of the property, upon paying the loss, became thereby subrogated to all the rights of the insured, to the extent of the loss they assumed. *(Mayor of New York*v. *Pentz,*24 *Wend.*668. *See opinion per Verplanck. S.*671, *and cases cited. Atlantic Ins. Co.*v. *Storrow, 5 Paige,*285. *N. Y. Ins. Co.*v. *Roulet,*24 *Wend.*513.)

III. A subrogation and assignment, *pro tanto,*was1 also effected by the acts of the parties.

• 1. The interest of the plaintiffs, as insurers, being known to the defendants, immediately upon the happening of the damage-the former, at the request of the latter, assumed the duty of making the most of the damaged cargo for the benefit of both; and the cargo was taken into the custody of the agent of the plaintiffs under this arrangement. This was a delivery to the consignees, inasmuch as they ceased to have any further interest in the cargo, in respect of the damaged portion, which all parties agreed should be cared for by the plaintiffs’ agent. The' result was a salvage, which enured to the benefit of the defendants.

2. The defendants, having thus recognized the interest of the plaintiffs, as insurers, and as assignees of L. Roberts *&*Co., and taken the benefit of their acts as such assignees, are estopped from now claiming that they had no such interest.

IV. The plaintiffs, under the formal' assignment executed by Roberts *&*Co., coupled with the acts of the defendants, in *268placing the property in the hands of the agent of the plaintiffs, are entitled to the rights of their assignors, as understood by all parties.

Y. The plaintiffs are wholly unaffected by any thing occurring between the defendants and the consignees of the property, after the happening of the loss and the transactions attending it. What did occur, does not, in any sense, amount to an accord and satisfaction on receipt of $50 of the claim of $2461.91.. The referee’s finding, on this point, is fully justified by the facts.

1. The $50, the only consideration alleged to support the supposed settlement, was collected by Stout, at the suggestion of the plaintiffs’ marine clerk, as a sum which, under the policy, the plaintiffs were entitled to claim at the end of the trip, irrespective of the amount of actual loss, already ascertained by the sale at Fort Plain.

2. The defendants knew there was no settlement to be made with L. Roberts & Co. about the damaged portion of the cargo, and there is nothing to show that it was attempted to be included. It does not appear that Stout ever knew of what took place at Fort Plain.

3. The amount of damage being ascertained by the sale of the damaged wheat, this was not a case of unliquidated damages ; therefore there could be no satisfaction of the debt by the payment of a part. (*Warren*v. *Skinner,*20 *Conn.*558. *Palmerton*v. *Huxford,*4 *Denio,*166.)

4. But, if the damages were unliquidated, the transaction could not be made to operate by way of settlement of an undisputed claim of $2461.91, unless the testimony showed, beyond a doubt, that it was so intended by both parties. There is no evidence of this, nor any evidence that this claim was even spoken of. *(Palmerton*v. *Huxford,*4 *Denio,*166. *Neary*v. *Bostwick,*2 *Hilt.*514.)

YI. But, even if the assignors had released the defendants, it would not affect the plaintiffs’ right of recovery. The insured, having a right to resort either to the defendants or the insurance company, and having received payment in full from *269the latter, could not release the defendants, who became liable to the plaintiffs immediately on their payment of this loss. *(Hart*v. *Western R. R. Co.,*13 *Met.*99.)

By the Court,

Robertson, Oh. J1.

The plaintiffs in this case, if they were assignees of the cause of action before any settlement-made by the defendants with the consignees, unless such defendants had no notice of such assignment, were entitled to recover. So, too, if they, had legal right in equity to such assignment before such settlement, and the defendants knew the facts out of which such equitable rights arose, a settlement made in fraud of such right would be void. It has been frequently held in the courts of this state, as well as those of Massachusetts, that where an owner of goods insured and damaged by perils insured against, abandons all *“ spes recuperando”*to the underwriter, the latter on paying the loss is entitled to be subrogated to all the rights of the insured to recover against third parties who caused the damage by neglect or otherwise. *(Atlantic Ins. Co.*v. *Storrow,*1 *Edw.*621. *S. C.*5 *Paige,*285. *New York Ins. Co.*v. *Roulet,*24 *Wend.*513. *Rogers*v. *Hosack’s ex’rs.,*18 *Wend.*319. *Etna Fire Ins. Co.*v. *Tyler,*16 *id.*385. *Hart*v. *Western R. R. Co.,*13 *Metc.*99.) And the entire destruction of the subject of insurance, *(Mayor of N. Y.*v. *Pentz,*24 *Wend.*668, *opinion of Verplanck, senator,*671,) or the payment of. the loss, *(New York Ins. Co.*v. *Roulet,*24 *Wend.*317, *per Edwards, senator,)*has been considered *equipollent*with an abandonment in giving the insurer such right of subrogation. In the case of a common carrier, it is true, the owner of goods transported by him may, by agreement, give him the benefit of an insurance on them effected by such owner so as at least to deprive the underwriter of any remedy against such carrier, although such insurance was made without knowledge by the underwriter of the agreement with such carrier. *(Mercantile Mutual Ins. Co.*v. *Calebs,*20 *N. Y. Rep.*173.) In fact such carrier is an insurer as well as the underwriter, and their rights seem to depend entirely on the action of the owner, who may by previous *270agreement give either the preference in having a claim against the other in case of a loss.

The referee in the present case appears to have assumed that an abandonment of some kind was necessary to entitle the plaintiffs to recover. He states in his report that the plaintiffs “ *by reason of”*an abandonment which he. had previously found as a fact, and the payment to the consignees of the amount of their loss, “ as well,” meaning undoubtedly “ as much,” “ as *by virtue*of the assignment to them,” acquired the rights of the consignees. That he meant that such rights were acquired by either means separately and indifferently, I think is evident from this contrasting the phrases “by reason of” and “by virtue of,” as well as from his nseof the word *“subrogated"*to express the mode of acquiring such rights, which is not appropriate to an assignment, and his succeeding statement, “ that the circumstances of the case constituted notice to the defendants of the intervening rights of the plaintiffs,” (not as assignees but) “ *as insurers*of the property injured,” and that therefore “ their settlement ® * was without effect on the previously acquired rights of the plaintiffs.” I cannot doubt, therefore, that the referee meant to rest his conclusions as much, if not more, on the right of the plaintiffs *as insurers*to whom the consignees had by other means transferred all their interest in the goods, than on their right as assignees, particularly as he does not speak of any express or implied notice of *the assignment*as such before the settlement, which would be necessary to defeat it.

There is no evidence in this case of a direct and formal relinquishment by the consignees of all their interest in the damaged grain to the plaintiffs, and the question of its abandonment as a fact is therefore not without difficulty in this case. The preliminary steps of possession taken by the plaintiffs of such damaged part by direction of the defendants, after a series of notices of the loss, first by the latter to the consignees, then by them to the plaintiffs, and finally some negotiation between the parties to this action, did not constitute an abandonment. Nor would the mere sale of part of the cargo *271and the receipt of its proceeds by the plaintiffs, unless by the consent of the consignee, operate as such. In fact at the time when the plaintiff thus took possession of the cargo, it was still in possession of the defendants as carriers, and they only delivered it to the plaintiffs to take charge of it for the parties interested. There is no direct evidence that the consignees at that time had any agency in the transfer of the property. Subsequently, however, *their*agent, in the very receipt given by him to the agent of the defendants, on the 9th of May, 1861, and which they claim to be a settlement, admitted that the damaged grain *had been received by the consignees*at Fort Plain, thus recognizing the delivery to the plaintiffs as a receipt by themselves. The damaged grain having been sold by the agent of the plaintiffs, and its proceeds received by them, they *settled with the consignees as for a total loss of the damaged grain,*without regard to such sum so received. That evidence was certainly strong enough to have defeated any action by the consignees against the plaintiffs for the conversion of such damaged grain. I think it was also evidence from which the referee was at liberty to infer an abandonment of the damaged grain. . *(See New York Ins. Co.*v. *Roulet,*24 *Wend.*513.) And if necessary for the determination of the case, we ought not to disturb his finding upon that point.

I am, however, inclined to think that even the payment of the loss alone, particularly as a total one, of the grain damaged, entitled the plaintiffs to be subrogated to the rights of the consignees, so far as such loss was concerned. Otherwise the consignees would be entitled to double compensation, and the policy of the plaintiffs become a mere wager one," since the consignees were entitled to be fully indemnified by the defendants, who were in fact equally insurers. In such case, neither would be entitled to recover against the other what they might be compelled to pay. In this very case, the consignees received fifty dollars from the' defendants for damage to the cargo, which was not credited to the plaintiffs in their settlement with them. On the payment of a partial loss, the inchoate right or equity of the plaintiffs must become complete, be*272cause there can be no abandonment. In the case of *The Mayor &c. of New York*v. *Pentz,*(24 *Wend.*668,) it was held that the plaintiffs were entitled to recover' the full value of property destroyed by municipal authorities to prevent the spread of a conflagration, without regard to an insurance made thereon, because the insurers were entitled to be subrogated, or to a reduction of their liability to the extent of the amount recovered from the city, without regard to an abandonment which would have been useless. It is laid down in a case in the same volume of reports, *(The New York Insurance Company*v. *Roulet, 516,)*that the mere payment of the loss by an underwriter entitles him in equity to *what may be recovered*from other parties on account of the loss, and necessarily to be subrogated so *as to recover*such money, and nothing is said of abandonment. In *The Atlantic Insurance Company*v. *Storrow, (ubi supra,)*a cancelment by the owner of goods, of a bill of lading, and a discharge of the ship owner from liability for the loss of such goods by thieves, was held to entitle the insurer in equity, after a judgment against him for the loss, to be relieved from it, and no question was raised of any necessity of abandonment. Of this equity of the plaintiff the defendants were bound to take notice, as they knew of the policy and invited the plaintiffs to take possession of the goods for the benefit of all parties ; and any settlement made by them was subject to such rights.

If the plaintiffs could entitle themselves by any act, to take the place of the consignees, in prosecuting the defendants for the damages to the grain, caused by the negligence of the latter, a settlement between the defendants and consignees for *fifty dollars,*of all claim for such loss admitted to have been over two thousand dollars, with knowledge of the facts out of which the right of the plaintiffs arose, and of the extent of the loss, would have been a fraud on them. But in fact, on the evidence, the referee was not bound to find that any such settlement took place. He has ignored it in his report, and in order to sustain that, we may and must presume he found against it, if the evidence justified such finding.

*273The receipt, on the back of which, according to the testimony of the plaintiffs’ agent, the figures or details of the supposed settlement were made and given, was merely for the cargo.delivered in New York, and such agent was unable to recollect what was said about the part of the cargo delivered at Fort Plain. All the items in such statement, except the one for fifty dollars, refer expressly only to the grain delivered in New York. That item is stated tobe for “general average,” which clearly is not applicable to a claim of damages for *a loss by negligence.*Two witnesses, (Requa and Higgins,) state that it was the custom to deduct such sum on the settlement of all freight bills for grain in bulk. Such indorsement states the charge to be for freight of the amount delivered in New York, and no charge is made for freight of the damaged cargo. The written document, therefore, which is constituted of the receipt and statement indorsed, together, purports to relate only to the delivery, freight and allowances in reference to the grain brought to New York, and only refers to the residue to state it was received at Fort Plain, and without making any charge for transportation, which by the bill of lading was to have been fifteen cents per bushel. If all the damage to the cargo, for which the defendants were responsible, was only fifty dollars, or that was for general average or some other customary allowance, they were clearly entitled to freight *%>ro rata,*yet nothing seems to have been said of it.

The express character .of' such written document was not varied by the other testimony of the agent of the plaintiff, (Stout.) All he could say of the claims made by the agent of the consignees (Requa) was “that he claimed the difference between *the cargo delivered*and what the bill of lading called for.” He made no other claim for damage than the one referred to, that “ they claimed for shortage ; * that the delivery was short fifty-six bushels, and that they should be allowed for that; ” but he further states that “ *they also claimed to be allowed for damage to the cargo, in addition to the sum of fifty dollars;*which was also agreed to and allowed.” No such claim appears in the statement, nor does it appear what *274was the amount. He could not tell how they got at the sum of $50, and could not recollect, after the lapse of four years, what was said about the portion of the cargo not delivered, although it was talked about. And he first testified that he did not know that part of the cargo had been stored, nor could he say that he had been informed that it had been either stored or sold, yet subsequently, when speaking of the conversation as to the damaged cargo, he states that he “knew a part had been taken out and sold, and that there was a loss.” He says “ the item in the bill, less for general average, is what he called the damage.” Mr. Requa, the consignees’ agent, thought, (as he testified,) that the claim for the damaged portion of the cargo was *not*embraced in the settlement. He did not recollect any discussion, or any thing said or done about the damaged portion of the cargo. With so plain an exclusion of all consideration of the damage to the part of the cargo not brought to Hew York by the receipt and statement indorsed, it w'ould be dangerous to trust to the imperfect recollections and vague statements of one of the parties to such settlement, after a lapse of four years, where a claim of $2000, on the one side, is alleged to have been relinquished for $50, and all claim for over $260 for freight, waived on the other, without the slightest recollection of any discussion of the claim by either party. The referee was, therefore, warranted in disregarding such transaction as a settlement of the present claim.

I have not been able to discover how the blank form of a policy of insurance read on the trial had any thing to do with this case. Ho connection is shown by other evidence, between it and any of the parties, or any document or transaction. It is said to have been read in evidence. Some proof must, therefore, be presumed to have been given in relation to it, or admission made as to its authenticity,- as the only objection was to its competency as between the parties to the action, and not to any want of proof. It might have been made relevant by other proof connecting it with other transactions, such as evidence that it was the form of the policy adopted by the plain*275tiffs with the consignees of the.cargo in question, and was, therefore, not necessarily to be excluded when offered. No motion was made to strike it out; the referee was not called upon to disregard it, and it does not seem, to have affected his decision; no advantage,, therefore, can now be taken of its admission.

There is apparently no evidence in the case to sustain the referee’s finding of a settlement between the consignees and defendants three days after the assignment to the plaintiffs, although Mr. Requa does testify that he paid Mr. Stout *a certain sum*($257.38,) as part of the sum due according to the previous settlement, and *“*took a receipt, the *one already produced in evidence.”*No such receipt appears in the case, but the sum is the same as that specified in the imaginary receipt set out in the referee’s report. Such a receipt, if it existed, would have a strong bearing upon the question of any prior adjustment of the claim for damages, if given with knowledge of the assignment; but it is not before us, and may be considered as stricken out of the report, with whose findings of fact and legal principles it does not interfere ; particularly as no exception was taken to the finding of fact based upon such receipt.

The judgment should, therefore, be affirmed, with costs.