The action is upon a policy of marine insurance for the sum of §8000, upon eight tenths of a brig valued at §10,000. The brig sustained an injury from the perils of the sea, while upon the yoyage insured, and, after incurring considerable expense, was brought into Belize, a foreign port from which the brig had then recently departed with a cargo bound to New York. Upon the adjustment of general. average for the expenses incurred in bringing the brig and cargo to Belize, the share of the brig was found to be §518.18.
The brig was very seriously injured, and it appears that repairs could be made at Belize only at an enormous expenditure, and the master by letter to the plaintiffs, stated these facts, and recommended temporary repairs, and that the brig should be navigated to New York, where permanent repairs could be made at much less cost. This information was communicated to the defendants, who authorized the plaintiffs to give the master instructions in the premises. The plaintiffs wrote to the master, instructing him to advise with Mr. Mathe at Belize, in making repairs, adding that whatever they did would be approved. The letter was shown to the defendants who, in writing, concurred in it. The repairs, considered to be of a temporary character, were made at Belize, involving an expenditure of §8769.74, and after the arrival of the brig at New York) full repairs were made at a further expenditure of §4547.21, after making the usual deduction of one third, new-for old. The defend*494ants paid the whole amount of their policy, ($8000,) to the plaintiffs, with interest and costs, and insisted that they had satisfied the whole extent of their liability. The plaintiffs insist upon recovering not only the sum insured by the policy, but also the balance of their expenditures for general average and temporary and permanent repairs, exceeding the sum paid by the defendants, by the further amount of $3282.23 ; for which sum the judge at the trial directed a verdict to be entered for the plaintiffs. The defendants excepted to the ruling of the judge, and the exceptions were directed to be heard at the general term in the first instance.
The right to recover for the expenses incurred by the assured in defending, saving and recovering property insured, in addition to the sum' named in the policy, has been sustained, and is laid down as authority by the elementary writers, and in the series of English and American cases referred to by the learned counsel who ably' argued the questions now before the court. Under these decisions, the proportion of the expenses borne by the brig under the adjustment of the general average, should, I think, be allowed to the'plaintiffs. These expenses were incurred in bringing the vessel into a port of safety, and are covered by the terms of the policy which require the assured to sue, labor and travel in and about the defense, safeguard and recovery of the subject insured. The further expenses paid for temporary repairs at Belize were incurred in the expectation, probably entertained by both parties, that such repairs, together with the subsequent full repairs to be made at the home port, would amount to less than the sum named in the policy. They are not expenses incurred, as it seems to me very plainly, like the items included in the general average, in or about the defense, safeguard or recovery of the brig. When the vessel reached a port of safety, the general object of the contract, requiring the assured to sue, labor and travel for the benefit of the thing insured, had been accomplished. The temporary repairs were made from economical motives. Had full *495repairs been made at Belize, they must have exceeded very much' the sum named in the policy. But in such case the recovery for repairs would have clearly, like the case of a total loss, been limited by the sum named in the policy. Again, it may be safely remarked, that there would have been no claim under the policy for the expense of the temporary repairs made at Belize, had the master or owners made them without the request or concurrence of the defendants. The defendants, however, did 'authorize the temporary repairs, and thereby, beyond dispute, made themselves liable therefor to the extent of the policy, at.least, as part of the necessary cost of full repairs. The question, then, remaining is, whether the course pursued in this respect made the defendants liable for the whole amount of the temporary repairs, as well as the full repairs, although the amount in the aggregate exceeds the sum named in the policy, and for such excess no premium has been received by the defendants. It may be safely assumed that the plaintiffs would not have given, nor would the defendants have authorized, the temporary repairs, could they have known the result. The amount of the outlay must have been wholly unexpected to all parties. There is no ground for doubting that the expenditures were made by the master and Mr. Mathe in entire good faith.
In considering this subject, I observe that the contract is one of indemnity. The plaintiffs could gain nothing by having the repairs made at New York, as I understand the facts. We have no evidence of the actual value of the vessel ; but for the purposes of the policy it was fixed at $10,000, and of course $8000 covered the whole interest insured, as to value. I assume that upon a survey and estimate of the expense for fully repairing at Belize, the plaintiffs might have abandoned, as for a total loss, and recovered from the defendants the sum insured, as well as the proportion of the general average borne by the brig. The defendants were the parties to be benefited in case a saving ensued *496from making temporary repairs, and bringing the brig to ¡New York for full repairs. The plaintiffs took no hazard. They applied to the defendants for directions, and obtained them. Had the defendants refused to authorize the temporary repairs, it appears improbable that the plaintiffs would have ordered them. The plaintiffs departed from their strict legal course only upon the authorization of the defendants.
[New York General Term, June 3, 1867.These reasons lead me to the conclusion that the repairs were made at Belize for the sole benefit of the defendants ; and that, having authorized them, and thereby induced the plaintiffs to take the course suggested by the master, they must bear the whole expense of the temporary, as well as the subsequent repairs made at ¡New York.
Judgment should be entered for the plaintiffs' upon the verdict, with costs.
Leonard, Clerke and Geo. G. Barnard, Justices.]