This action was brought to recover damages for a loss sustained by a fire which occurred in the city of New York in July 1845, against which the defendant, by a policy of insurance made to the plaintiff, had insured him. The property insured was spirituous liquors and at the time of the fire the greater part was in a public store, on which the duties had not been paid or secured. The judge charged the jury, in substance, *Page 584 that the plaintiff was entitled to recover the cash value of the property destroyed, although the duties had not been paid or secured, to which the counsel for the defendant excepted; and this is the only question to be determined. The defendant, in the words of the policy, "agrees to make good unto the said assured, his executors administrators and assigns, all such loss ordamage, not exceeding in amount the sum insured, as shall happenby fire to the property as above specified, from the eighth day of November, one thousand eight hundred and forty-four (at 12 o'clock at noon), until the full end and term of one year thence next ensuing, which term will expire on the eighth day of November, one thousand eight hundred and forty-five (at 12 o'clock at noon), the said loss and damage to be estimatedaccording to the true and actual cash value of the said property,at the time the same shall happen."
The measure of damages decided by the judge to be correct, was the same upon which the parties had agreed in their contract and is plainly the true measure. If the plaintiff had been in debt for the purchase money, to the full value of the goods, it might upon the principle contended for here by the defendant, as well be contended that he was not entitled to recover any thing. There is no error in the judgment and it should be affirmed.
MORSE, J., also delivered a written opinion, in which he concurred with the opinion of Judge Jewett.
Judgment affirmed.
*Page 9