I concur with Judge Brady in the opinion, that where part of the wheat was damaged by actual contact with sea water, and the residue was damaged by dampness in consequence of such actual contact of part with sea water, that the plaintiffs are entitled to recover for such damage, both from actual contact, and the dampness to the residue arising from such contact.
The warranty is free from damage from dampness, change of flavor, color, &c., except caused by actual contact of sea water with the articles damaged. The dampness referred to in the warranty, is dampness to the article when it has not come in contact with the water. Where such contact has taken place, the insured are entitled to recover for all the damage done by such contact with sea water, whether caused by immersion in the water, or caused by dampness communicated to the upper portion from the contact with sea water of the lower portion.
But I do not concur in that construction of the policy, by which the article of grain is to be considered as stricken from the warranty by reason of the written portion of the policy, *129which makes grain subject to average if damaged ten per cent, on the sea passage.
By the printed part of the policy, grain is free from average unless general. This is to be controlled, by the written portion of the policy, so as to read according to such written portion of the policy; and the warranty then applies to it in the amended form, so that the policy will insure the plaintiffs against loss on grain subject to average, if damaged ten per cent, on the sea voyage, but with the warranty that it should be free from damage except by actual contact with sea water.
As some of the damage in this case was occasioned by tne smell from the hides, the defendants are not, under any construction of the policy, liable therefor.' The amount of such damage, does not appear, by the case, distinct from the other damage, and a new trial may be necessary, unless the parties agree to a reference to ascertain the amount of damage, excluding the portion so injured.
Daly, J., concurred.
New trial ordered—costs to abide the event, unless the parties-agree to refer the case to a referee to compute the amount off damages, as suggested in the opinion of the first judge. [1]
This case was decided at August 'term, 1857, by Ingraham, first judge, and; Daly and Brady, associate judges; but was not reported in its order as to date,, because the parties agreed to a reference, and the case was again brought before the court upon an appeal from the decision of the referee. It was therefore deemed-desirable to have the whole case, with the decisions, reported in connection.