Decree affirmed.

THE COMMERCIAL MUTUAL MARINE INSURANCE COMPANY, Appts.,

v.

ance.

Whether the risk shall commence from a past

day, depends on the terms of the contract.

Proof that the presidents of the insurance companies in a city had been accustomed to contract orally, is competent evidence to show authority to

do so.

It is not essential to a binding contract to make insurance, that a premium note should have been actually signed and delivered.

The promise to give such note is a sufficient consideration for the promise to make a policy.

Argued Jan. 22, 1857. Decided Feb. 17, 1857.

This case is stated by the court. Messrs. R. Choate and George T. Curtis, for the appellants:

A corporation cannot be charged by an act or agreement of its officers or other agents, when it has a fixed usage in the making of the particular contract sought to be enforced, unless the contract was made in the mode prescribed by the usage.

Head v. Prov. Ins. Co., 2 Cranch, 127; Beatty v. Marine Ins. Co., 2 Johns., 109; Cape Sable Co.'s case, 3 Bland. Ch., 606; Fulton Bank v. N. Y., &c., Co., 4 Paige, 127; The State v. Com. Bank of Manchester, 6 Sm. & Mar., 237; Foster v. Essex Bank, 17 Mass., 505; Bulkley v. The Derby Fishing Co., 2 Conn., 252.

As the Statute prescibed the mode in which policies were to be executed before the Corporation can be charged upon a parol agreement to insure, the authority of some officer to bind the Company in that mode must be shown, and it is not shown by the mere fact that the officer was the President of the Corporation.

To sustain this bill, it must appear affirmatively that the President was authorized to make a parol contract of insurance that should be immediately binding, either by a vote of the directors, or by a course of business and usage sufficient to warrant the presumption that such authority had been conferred.

Authorities above cited.

Mr. C. B. Goodrich, for appellees: An offer accepted before withdrawn, constitutes a contract.

Tayloe v. Mer. Fire Ins. Co., 9 How., 390. Dunlop v. Higgins, 1 H. of L. Cas., 381. The parties having conluded and agreed upon the terms, an agreement to issue a policy is implied.

Henley on Bank Laws, 3d London Ed., 291.

The proof shows an acceptance by the appellees of the offer made by the appellants. It shows the mutual understanding of the parties, that a policy would be ready for delivery as soon as the same could be prepared. The delay in its issuance was for the convenience of the appellants.

Bodle v. Chenango Mutual Ins. Co., 2 Comst., (N. Y.), 53; Neville v. Mer. & Man. Ins. Co., 17 Ohio, 192.

A contract to reinsure, and agreement to issue a policy, if the terms are admitted or es tablished in proof, they are valid, although not in writing. Such contracts are not within the Statute of Frauds, and are not, by any statute of Massachusetts, required to be in writing.

McCulloch v. Eagle Ins. Co., 1 Pick., 278; N. E. Ins. Co. v. De Wolf, 8 Pick., 63; Thay er v. Middlesex Mut. Ins. Co., 10 Pick., 326;

Sandford v. Trust. Fire Ins. Co., 11 Paige, 550; Kohne v. Ins. Co.. of N. A., 1 Wash.. 97; Tayloe v. Mer. Fire Ins. Co., 9 How., 390; 2 Phill. on Ins., 3d. ed., sec. 1936, Graces v. Boston Mar. Ins. Co., 2 Cranch, 419; Perkins v. Wash. Ins. Co., 6 Johns. Ch., 485.

The appellees are entitled to a specific performance of the agreement of the appellants to execute and deliver a policy of reinsurance.

2 Phil. on Ins., 3d ed., 575, sec. 1936; Tayloe v. Mer. Fire Ins. Co., 9 How., 390; The Mech. Bank of Alexandria v. Seton, 1 Pet., 299; Andrews v. Essex F. & M. Ins. Co., 3 Mas., 10; Ex parte Wright, 19 Ves., 255.

They are entitled to a decree for the payment of the loss sustained.

Tayloe v. Mer. Fire Ins. Co., 9 How., 390. Opinion of the Circuit Court herein, Boston Law Rep., March, 1856.

Mr. Justice Curtis delivered the opinion of the court:

This is an appeal from the Circuit Court of the United States for the District of Massachu setts, in a suit in equity, to compel the specific performance of a contract to make reinsurance on the ship Great Republic. The Circuit Court made a decree in favor of the complainants, and the respondents appealed.

It appears that the complainants, a Corporation established in New York, having made insurance of the ship Great Republic to a large amount, authorized Charles W. Storey, at Boston, to apply for and obtain from either of the Insurance Companies there, reinsurance to the extent of $10,000. Pursuant to this author.

The first is, that by force of a statute of the State of Massachutetts (Rev. Stats., ch. 37, secs. 12, 13), insurance corporations can make valid policies of insurance only by having them signed by the President and countersigned by the Secretary. But we are of opinion that this Statute only directs the formal mode of signing policies, and has no application to agreements to make insurance.

Such we understand to be the view taken of this Statute by the Supreme Court of Massachusetts.

New England Ins. Co. v. De Wolf, 8 Pick., 63; Stat. 1817, ch. 120, sec. 1; McCullock v. The Eagle Ins. Co., 1 Pick., 278; Thayer v. The Mid. Mut. Ins. Co., 10 Pick., 326; see, also, Trustees v. Brooklyn Fire Ins. Co., 18 Barb., 69. and Carpenter v. The Mut. Safety Ins. Co, 4 Sandf. Ch., 408.

It is further insisted, that by the law merchant insurance can be effected only by a contract in writing. We do not doubt that the commercial law of all countries has treated of insurance as made in writing by an instrument, denominated by us a policy; and there may be provisions of positive law, in some countries, requiring an agreement to make a policy to be in writing. But there is no such statute of frauds in the State of Massachusetts.

The common law must therefore determine the question; and under that law a promise for a valuable consideration to make a policy of insurance is no more required to be in writ | ing than a promise to execute and deliver a bond, or a bill of exchange, or a negotiable note. So it has been held by other courts, and, we think, on sound principles. 18 Barb., 69; Hamilton v. The Lycoming Company, 5 Barr., 339; see, also, Sanford v. The Trust Fire Ins. Co.. 11 Paige, 547.

The respondents' counsel has argued that their President had not authority to enter into an oral contract binding the Company to make insurance. They admit it has been usual for the President to make such contracts; but they say that when he has done so, the policy was not issued until the next day, and no risk is understood to have commenced under such an undertaking until the policy issues. Whether a risk be commenced when the contract for insurance is made, or only when the policy issues, must depend on the terms of the contract. Where, as in the present case, there is an express contract to take the risk from a past day, there is no room for any understanding that it is not to commence until a future day. Such an understanding would be directly repugnant to the express terms of the contract. And if the defendants have held out their President as authorized to make oral contracts for insurance, no secret limitation of this au thority would affect third persons, dealing with him in good faith and without notice of such limitation. Besides, the supposed limita tion would be inconsistent with the authority itself. It is, in effect, that though the President is authorized to make oral promises to the effect insurance, the Company are at liberty to execute those promises, or to refuse to do so, at their option.

The power of the President to enter into this contract to make insurance is nowhere denied in the answer. All that can bear on this sub

ject occurs in certain statements concerning the usual course of business of the Company. It seems to have been assumed by both parties, that whatever the President actually did in this transaction, he did for the Company, and so as to render them responsible for his acts. And no question was raised on this point in the court below. Stiil it is incumbent on the complainants to offer competent and sufficient evidence of the authority of the President to bind the Company, though less evidence may be reasonably sufficient when no issue concerning it is made on the record.

We think such evidence is in the case. Mr. Storey deposes, that during the three years next preceding this transaction, he had effected upwards of three hundred contracts for reinsurance, with the presidents of ten different insurance companies of Boston; and that one, or possibly two, of these presidents, usually signed an accepted application-the others all contracted orally. Considering that all the incorporated insurance companies in Boston have similar charters, and the same kind of officers to conduct their business, we think this is competent evidence, that presidents of such insurance companies in that city are generally held out to the public as having the authority to act in this manner. And upon & point not put in issue in the record, and on which no more than formal proof ought to be demanded, we hold this evidence sufficient. Fleckner v. The Bank of the U. S., 8 Wheat., 360; Minor v. The Mechanics' Bank of Alexan dria. 1 Pet., 46.

The fair inference is, that if the general authority of the President to contract for the Corporation had been put in issue, it could have been shown, by the most plenary proof, that the presidents of insurance companies in the City of Boston are generally held out to the public by those companies as their agents, empowered to receive and assent, either orally or in writing, to proposals for insurance, and to bind their principals by such assent.

Nor do we deem it essential to the existence of a binding contract to make insurance, that a premium note should have been actually signed and delivered. The promise of the plaintiffs to give a note for the premium was a sufficient consideration for the promise to make a policy. It is admitted that the usage is to deliver the note when the policy is handed to the assured. If the defendants had tendered the policy, we have no doubt an action for not delivering the premium note would have at once lain against the plaintiffs; and we think there was a mutual right on their part, after a tender of the note, to maintain an action for non-delivery of the policy. In Tayloe v. The Merchants' Fire Ins. Co., 9 How., 390, it was held that a bill in equity for the specific performance of a contract for a policy could be maintained. And it being admitted that in this case the defendants would be liable as for a total loss on the policy, if issued in conformity with the contract, no further question remained to be tried, and it was proper to decree the payment of the money, which would have been payable on the policy, if it had been issued.

The decree of the Circuit Court is affirmed. Cited-12 Wall., 304; 3 Wall., Jr., 316; 2 Biss., 246.

THOMAS RICHARDSON, Piff. in Er.,

v.

THE CITY OF BOSTON.

(See S. C., 19 How., 263-271.)

Nuisance-record of former recovery, evidence, but not conclusive-if there be evidence, case should be submitted to the jury-Boston v. Lecraw, 58 U. S., ante, commented on-right of adjoiners to a street-anything which obstructs such right is a nuisance-courts construe instruments-their application to external objects is for the jury-instances.

admissible in evidence.

In an action for damages from a nuisance, a record of a former recovery by plaintiff against defendant, for damages from the same nuisance, is Such record is not conclusive on the second trial for a different trespass. If there be no evidence to prove the averments of the declaration the court, should so instruct the jury.

But if there be some evidence tending to support the averment, its value must be submitted to the jury, with proper instructions from the court. The nuisance which is the subject of complaint in this case is the same as that in the case of Boston v. Lecraw, U. S., ante.

That case commented on, and the rights of owners of land between high and low water mark

stated.

If the defendant laid out a street on its land between high and low water mark, the right to use it as a street became appurtenant to the property of the adjoiners.

Anything which obstructs such right is a nui

sance.

over the same to and from his respective wharves.

The fifth count, like the first and third, avers the right of way with vessels to be appurtenant to plaintiff's wharves respectively; set forth the possession of tenants of plaintiff, and claims damages for injury to the reversion. The sixth count proceeds like the fifth for injury to the reversion, alleging the "public or town dock," on which plaintiff's wharves are bounded, to be and have long been a public way, slip or dock. and that by reason thereof plaintiff ought at all times to have access over the same with boats and vessels to his respective wharves. The seventh count is founded on plaintiff's possession, and avers the plaintiff's wharves to be bounded respectively on a "highway, town way or public way" to the sea, extending from a corner of Summer and Sea streets to the channel or law water, which was duly laid out and established pursuant to law, and that by reason thereof, plaintiff ought at all times to have access over the same with vessels to his respective wharves.

The case was tried under the general issue, and the plaintiff offered in evidence the record of a former verdict and judgment rendered in his favor, in an action brought by plaintiff against defendant, to recover damages for the erection of the same nuisance, the continuance of which is the subject of the present suit.

Whether a drain constructed by defendant was not carried out sufficiently to discharge its contents so as to be swept off by the tides; or whether it caused an accumulation of matter at the end of plaintiff's wharves, so that vessels could not approach them with the same depth of water as formerly, were questions which should have been submitted to the jury.

Argued Jan. 26, 1857. Decided Feb. 18, 1857, IN ERROR to the Circuit Court of the United States for the District of Rhode Island This is an action of trespass for maintaining a drain in the City of Boston, extending from the foot of Summer Street towards the sea. It is the same structure from the erection of which the suit of The City of Boston v. Lecraw was commenced, which was decided by this court in 1854, and is reported in 58 U.S. (17 How.), 426. The first and third counts in the declaration aver that plaintiff is seised and possessed, &c.. of his wharves, each being the subject of a separate count, and has a right of way for egress and regress with vessels over the "dock" or "way and dock” on which his wharves are bounded, and which constitutes the interval be tween said wharves as an appurtenance to the same, respectively.

The second and fourth counts aver that the plaintiff is seised and possessed, &c., that his wharves are bounded on the "town dock" and "town way or dock," which it alleges to be and have long been a "public dock, slip or way," and that by reason thereof plaintiff ought to have free access with boats and vessels

NOTE.-Nuisance, when injunction against will be

granted. See note to Irwin v. Dixon, 50 U. S. (9

How.), 10.

that said former judgment was and is conclusive evidence as against the defendants, of the rights and interests of the plaintiff, as set forth in said count in his declaration in this suit: second; that said judgment was and is conclusive evidence as against the defendants, of the existence of the rights and interests of plaintiff as set forth in such count at the time embraced by said judgment, and prima facie evidence of the continuance of said rights and interests in the plaintiff at the time set forth in said count: third; that said judgment was and is conclusive evidence as against the defendants, of the existence of the rights and interests of plaintiff, as set forth in such count at the time embraced by said judgment: fourth; that said judgment was and is admissible in evidence in support of said count.

The court refused to rule and instruct the jury in conformity with either of said requests, but did rule and determine that said judgment was not admissible in evidence for any purpose, and refused to admit the same to be put in evidence, to which refusals and ruling the plaintiff then and there excepted. The plaintiff also offered in evidence an agreed statement of facts made in said former case between said parties, signed by the counsel for plaintiff and defendant. The court ruled that said agreement was not admissible.

After the introduction of various other evidence, the plaintiff rested.

Thereupon the defendants introduced, by leave of the court, the Ordinance of the City of Boston of June 18, 1849, a copy of which is as follows:

Order on Mavor and Aldermen, June 18, 1849. City of Boston. An Ordinance instituting the Board of Health for the City.

Be it ordained by the Mayor, Aldermen and Common Council of the City of Boston, in City Council assembled, as follows:

The Mayor and Aldermen shall constitute the Board and Health of the City, and shall exercise all the powers and perform all the duties, now vested in the City Council as a Board of Health, with the right of carrying into execution such powers and duties, through the agency of any persons whom they may select, or in any manner which they may prescribe.

In Common Council, June 14, 1849. Passed: sent up for concurrence.

BENJAMIN SEAVER,

City Clerk. And without offering any further evidence on their part, did request the court to rule and instruct the jury, that there was not sufficient evidence in the cause to authorize the jury to find the rights claimed by the plaintiff, and the violation of those rights by the defendants, such as to sustain the plaintiff's action. The plaintiff, on his part, did request the court to rule and instruct the jury as follows:

1st. That there is evidence in the case competent to go to the jury, and to be judged and weighed by them, that at the time of the grants by the town to Gridley & Baxter of their estates or possessions, there existed a town or public way between those possessions, for access to and from the sea in boats and vessels, upon which those possessions were bounded, and that the right to use and enjoy said way passed to said grantees by the grant of those posses sions, and is an appurtenance thereto and to their heirs and assigns.

4th. That if the jury shall find that at the time of the staking out of said highway, Oct. 31, 1683, the same extended below high water mark, and that the possessions of said Baxter bounded on said way, then by virtue of the liberty to wharf, granted at the same time to the proprietors of lands on Sea Street, the right to use said way for access of boats and vessels to and from such wharf, became, by virtue thereof, annexed or appurtenant to the possession of said Baxter, his heirs and assigns.

Thereupon His Honor, the Judge, did decline and refuse to make and give either of the said rulings and directions so prayed by the plaintiff, but did rule and instruct the jury as prayed by the defendants.

The counsel for the plaintiff did then and there except to each of the aforesaid rulings and refusals and to said directions of the court, and thereupon the jury returned a verdict for the defendant. The plaintiff then brought the case here on a writ of error.

Mr. S. Bartlett, for the plaintiff in error: The plaintiff submits, that in an action on the case for the continuance of a nuisance, a ver dict and judgment for plaintiff in a former suit brought by him against the same defendant for the original erection of the nuisance, was not only competent to be read in evidence, but is,

when offered under the general issue by plaintiff, conclusive evidence as against defendant of the existence of the rights and interests claimed by plaintiff in such former action as averred therein, and prima facie evidence of the continued existence of such rights up to and during the period set forth in the pending suit. In this case, the former judgment could not be pleaded by plaintiff, and it is settled by this court that if a party have not opportunity to show an estoppel by pleading, he may exhibit the matter thereof in evidence, and the court and jury are bound thereby.

P. W. & B. R. R. Co. v. Howard, 54 U. S. (13 How.), 307.

The true rule is, that a verdict is in all cases conclusive, whatever the form of the issue, upon any matter within it which must have been necessarily and directly found by the jury, and it has been frequently applied in actions for continuance of a nuisance.

1 Greenl. Ev., sec. 534; Rex v. St. Pancras, Peake, 220; Shafer v. Stonebraker, 4 G. & J., 345; Parker v. Standish, 3 Pick., 288; Smith v. Elliott, 9 Pa. St., 345; Rockwell v. Langley, 19 Pa. St., 502.

Parol evidence may be resorted to, to show the nature of the dispute, and thus the matter be brought within the estoppel of the judg ment.

Young v. Black, 7 Cranch, 565; Wood v. Jackson, 8 Wend., 9: Lawrence v. Hunt, 10 Wend., 80; Young v. Rummell, 2 Hill., 478.

The rights of the plaintiff, supported by the former judgment, are presumed to continue up to and during the period covered by the declaration in the present suit.

Brimmer v. Prop. Long Wharf, 5 Pick., 131; 1 Phil. Ev., 457; 2 Greenl. Ev.. sec. 555.

The judgment offered in evidence in this case is clearly within the rule, and binding upon the parties in all future controversies relating to the same matter.

Hopkins v. Lee, 6 Wheat., 109; 2 Phil. Ev., 142; Gratz v. Lancaster Bank, 17 S. & R., 278; Preston v. Clark, 9 Ga., 244; Gardner v. Buckbee, 3 Cow., 120.

The ruling of the court below, at the defendant's request, that there was not sufficient evidence to sustain the plaintiff's case, was upon the facts shown upon the principies settled by this court the withdrawing questions of fact from the appropriate tribunal, the jury.

Greenleaf v. Birth, 9 Pet., 292; U. S. v. Laub, 12 Pet.. 1; Bank of Washington v. Triplett, 1 Pet., 25; C. & O. Canal Co. v. Knapp, 9 Pet., 541; Scott v. Lloyd, 9 Pet., 418; Roach v. Hulings, 16 Pet., 319.

Messrs. P. W. Chandler, Loring and Ames, for the defendants in error:

The judge correctly ruled out the agreed statement of facts used in a former trial of another cause.

1 Greenl. on Ev., sec. 179; Baker v. Harrison, 5 Litt., 59; Baylor v. Smithers, 1 Mon., 6; Elting v. Scott, 2 Johns.. 157.

The judgment in the former case between these parties was rightly rejected as incompetent evidence. It was not upon the same subject matter. The variation of time is material in distinguishing one cause of action from another.

Aslin v. Parkin, 2 Burr., 665.