The testimony of the witness Rumberg, the clerk of Cohen Co., showing the conversation between him and the president of the defendant, at the time he exhibited to the latter the telegram giving an account of the loss, was competent for the purpose of showing that the defendant, at the time of writing the policy, knew of the course of business prevailing among shippers of specie and gold bars at San Francisco to unite the amount to be shipped by each *Page 402 respectively, when such amount was less than $30,000, so as to make the sums when united exceed that amount, thus securing to each the benefit of the reduced rate of freight on the larger amount. Such course was proved in this case, and that the bars in question were shipped in accordance therewith. The testimony in question, uncontradicted and unexplained, proved that the defendant knew of such course, and that the policy was made in reference thereto. It was not offered to prove a modification of the policy or a waiver of any of its conditions or stipulations by the defendant. The objection to the testimony was therefore properly overruled. The only remaining question raised upon the trial was, whether the policy covered the bars in question. By the policy, which was an open one, the defendant insured H. Cohen Co. on account of A. Block Co. (the plaintiffs), and consigned to H. Cohen Co., by regular invoice and bill of lading, from San Francisco to New York, on specie, gold bars,c., at a rate of premium therein specified, by steamers, via the isthmus, c. The bars in question were shipped by the plaintiffs, in pursuance of the course of business existing at San Francisco, together with other shippers, who unitedly shipped more than $30,000, which, by the bill of lading, was all consigned to Messrs. Newstadter Brothers, New York, the plaintiffs taking an order from the persons in whose name it was shipped upon Newstadter Brothers, the consignees in New York, for the delivery of the bars in question to Cohen Co. upon their arrival in New York. The plaintiffs forwarded this order by the steamer to Cohen Co., and the same (together with the bars) was lost by the burning of the steamer, which was one of the perils covered by the policy. It is insisted by the counsel for the defendant that, as the bars were not, by the bill of lading and invoice, consigned by the plaintiffs to Cohen Co., they do not come within the description of property insured by the policy. That the object of the clause, describing the property insured as being such as was consigned to Cohen Co., by regular invoice and bill of lading, was to protect the *Page 403 defendant from the fraud of the assured in neglecting to report such shipments as arrived safely, as no intelligence of the shipment would be received in New York prior to such arrival, as such intelligence was forwarded by the same steamer upon which the property was shipped. In the absence of the proof of the usage of making shipments of this kind at San Francisco, and of knowledge thereof by the defendant, this argument would be entitled to great weight, but the proof in question entirely destroys its force. The limit fixed by the policy to the amount of risks upon any one steamer (not exceeding $19,000), furnishes an argument of some force against the position of defendant's counsel. It is true that, if plaintiffs wished to ship more than $19,000 by any one steamer, they could have procured additional insurance from other companies. Yet this limitation furnishes an inference that it was anticipated that plaintiffs' shipments would generally consist of sums less than $30,000, and those acquainted with the difference between the charges for freight upon sums below that amount and upon that amount and upward, and of the course pursued by those wishing to ship the smaller amount, to secure to themselves the benefit of the lower charges, could scarcely have expected the plaintiffs to ship otherwise than they did in the present case. In a popular sense, the bars were shipped by the plaintiffs, consigned to Cohen Co., by regular invoice and bill of lading. They were shipped by plaintiffs and the order received by them from the shipper upon the consignee named in the bill of lading, embracing an invoice of the bars, and directing their delivery by him to Cohen Co. for their use, was in effect an assignment of the bill of lading and a consignment of the bars to Cohen Co. by the plaintiffs. Consignment imports the sending to or transferring or delivering of property by one into the possession of another. The requisite of the policy, that the property covered by it must be consigned by a regular bill of lading, it is obvious from the facts in this case, was not intended to protect the defendant from the fraud of the *Page 404 assured in evading the payment of premiums, but to insure the greater security from loss of property so shipped beyond that shipped without such a document. This security was obtained to its fullest extent in the present case, and thus the defendant enjoyed all the benefit intended to be derived from the clause in question. The receipt of the defendant of the premium, with full knowledge of all the facts, and declaring the plaintiff entitled to his private dividend upon its payment, corroborates this view of the case. The judgment appealed from must be affirmed with costs.
All concur for affirmance.
Judgment affirmed.