The doctrine of estoppels by matters in pais, can have no application to the present case, else it would seem to lead to, and sanction it, in every case in which the acts or admissions of the party would be admissible in evidence against him. This is too general and broad a position. There are many acts, declarations, admissions and confessions which are admissible in evidence against the party making them, but which cannot be pleaded or proved by way of estoppel, and are left at large to be weighed with other evidence. 1 Greenl. Ev. Sec. 212. And this is applied to adjustments of a loss on a policy of insurance, whether paid or to be paid, which were made in ignorance of material facts, and without full knowledge of all the circumstances. Ibid.; Reyner v. Hall, 4 Taunt. R. 725 ; Shepherd v. Chewter, 1 Campb. R. 274 and note; Bilbie v. Lumley, 2 East R. 469; Elting v. Scott, 2 John R. 157.
Nor will the fact that the statement is sworn make matters of mere evidence operate as an estoppel, however much it may add to its weight as evidence. 1 Greenl. Ev. Sec. 210; Thomas v. White, 1 Tyrwh. & Grang. R. 110.
And this is applicable even to answers in chancery. Ibid.; Doe v. Steel, 3 Camp. R. 115; 1 Stark. Ev. 333 to 338; Studdy v. Saunders, 2 Dow & Ryl. R. 347; De Whelpdale v. Milburn, 5 Price R. 485.
The affidavit for the attachment is only an admission of property in the Insurance Company, and this was as distinctly assumed and asserted by the notice of abandonment, and the refusal to receive the schooner back when tendered. I think all the evidence objected to was properly admitted in evidence, but do not think the defendent here occupied such a position as to enable him to insist upon that evidence, as estopping plaintiffs from denying property in the Insurance Companies, and asserting it to be in themselves. To have this effect there must be some act, conduct, admission, &c., with intention to influence the conduct of another, and some act of the other, under the facts thereby supposed to exist, by which lie will bo prejudiced, if the other be allowed to gainsay the conclusion from those acts. Reynolds v. Lounsbury, 6 Hill R. 536; Baker v. Pratt, 15 Ill. R. 570.
Apply the rule to the case. Hixon has not shown that he contracted this debt with the Insurance Company, or instituted this suit in consequence, or upon the faith of Norton & Company’s affidavit or statement of the ownership of this vessel being in the Insurance Company. Having done no act, nor been influenced to assume a position by the conduct or declaration of plaintiffs, he lias no right to insist upon this evidence as an estoppel.
Viewing the question, therefore, in relation to ownership, as open under the policy, I come to inquire what has been done, and whether that ownership was thereby changed.
It is agreed that on the 27th of Nov., 1850, the schooner belonged to plaintiffs, and it is proved she was sailing under a time policy, and was driven ashore on False Presque Isle in Lake Huron on that day, and was stranded, lying hard on, among the rocks and boulders, at anchor, with four to five feet water in her hold. This point is shown to be about two hundred and forty miles from Detroit, and three hundred and sixty-five from Milwaukee, and, I presume, could not exceed four hundred and fifty from Chicago, where the agency of the Insurance was located, and plaintiffs reside. At what time the master’s protest and information of the disaster was communicated to plaintiffs, does not appear. They gave notice of it and of an abandonment as of a total loss to the Insurance Company on the 26th Feb., 1851, three months after the loss. This is clearly too late, for any excuse presented in this record,, for the delay. The assured, on receiving intelligence of a loss, must “ make his election speedily whether he will abandon or not,” (Park on Ins. 280) ; he must “give notice to the underwriters within reasonable time,” (Mitchell v. Edie, 1 Term R. 608) ; “ must signify his election the first opportunity.” “ He must elect in the first instance: the first instance means after the assured has had a convenient opportunity of examining into the circumstances, to ascertain what is the degree of damage; if the assured had treated it as intending to pursue the adventure after he knew the full extent of the damage, I should have thought the abandonment too late.” (Per Gibbs, Ch. J. in Gernon v. Roy, Ex. Ass. Co., 6 Taunt. R. 383.) “ The law is that the assured shall abandon in reasonable time, that ho may not lie by to see whether it may be more for his interest not to abandon.” (Per Ch. J. Dallas in Hudson v. Harrison, 3 B. & B. R. 106.) “ What is a reasonable time within which the notice should be given, must, in every case, depend on the circumstances of that individual case.” (Read v. Bonham, 3 B. & B. R. 154.) “ This is a question which has not yet been reduced to such certainty as to enable the court to pronounce upon it, without the aid of a jury.” (Ch. J. Marshall in Ches. Ins. Co. v. Stark, 6 Crunch R. 273.) 2 Phil, on Ins. 382-3. See Peele et al. v. The Merch. Ins. Co., 3 Mason R. 648.
Such is the general rule. In its application to the particular case, though not so strict, it is like notice of protest on bills.. If there be unnecessary delay, the presumption will arise that the assured contemplated pursuing the voyage, and he must account for and explain it. See 2 Phil, on Ins. 383 to 390.
Here is a delay of three months unexplained, and under circumstances that warrant the conclusion that they must have known of the loss within a very short time, and where the parties all lived in the same city. I am warranted from these facts to conclude that the assured delayed to speculate upon the value of the property insured.
The law of insurance is one of indemnity' and not of sale. The right of abandonment, which turns a partial loss or damage, and changes the indemnity therefor, into a total loss, and thereby effects a sale to the underwriters of the property insured, is not to be favored beyond the strict rules of law, and the contract of the parties. Bainbridge v. Neilson, 10 East R. 329, 343 ; 3 Mason R. 38.
The abandonment was refused by the underwriters. The assured having lost the right of abandonment, if it were ever warranted by the facts, of which it is therefore unnecessary to inquire, it is certainly not revived by the fact of the insurers taking possession of the vessel for the purpose of repairing the damage, nor by delay in commencing or completing such repairs, nor by the insufficiency or incompleteness of those repairs ; but any or either of these can only respect the question of damages and the fullness of indemnification. If the vessel is not fully repaired, or her capacity is lessened, or her value diminished, the underwriters are liable to pay the difference.
The insurers took possession for the purpose of repairs, according to the terms of the policy. There is no provision in relation to the length of time in which repairs were to be completed. Delay might possibly raise a question as to the extent of damage resulting from the injury, but cannot create or confer a right of abandonment; for while the policy provided that the assured, their agent or assigns, should “ adopt prompt and efficient measures for the safeguard and recovery ” of the vessel, and to “ cause the same to be forthwith repaired,” and for neglect, authorized the insurers to “ interpose and recover the said schooner, and cause the same to be repaired for account of the assured; ” it also expressly declares that, “ in no case whatever shall the assured have the right to abandon, until it shall be ascertained that the recovery and repairs of said schooner are impracticable.” There is no evidence of any measures taken for the recovery or repairs, by the assured, nor have they offered any evidence of the impracticability of the recovery or repairs, other than the stranding, nor what was done to ascertain these facts, unless it be that she filled, notwithstanding the efforts of the crew to pump her out. Neither stranding, filling, nor submerging, is sufficient alone, to show a wreck, a total or constructive total loss. 2 Phil, on Ins. 380; 6 Mass. R. 470 ; 3 Kent Com. 322, 323, 324; 3 Mason R. 39, 42,43. The right to abandon, depends upon the true state of the facts at the time of abandonment; although the existence of these facts is sometimes in part deducible from the high degree of probability of the loss from the imminency and degree of disaster and peril.
And so if the facts justify an abandonment at the time of notice given, the right becomes vested, under the American rule, and absolute; but under the English rule, was subject to changes varying it, up to the time of action brought. 3 Kent, 321, 322; 3 Mas. R. 27 ; 10 East R. 329 ; 2 Phil, on Ins. 371, Sec. 8.
Testing the right by these principles, it was extremely doubtful whether the injury and peril ever justified the abandonment. But granting that they did, it was lost and waived by delay, and could not be revived by the delay and negligence of insurers in paying or repairing. We are not sitting in judgment upon the propriety and consistency of plaintiff’s conduct in giving notice of abandonment, attaching and then claiming the property. The rights of the Insurance Company, in whose right it is claimed by their creditor, are involved, and should be respected. They refused to accept, repaired and tendered back the schooner, and still apparently hold her to answer that tender. In their course and conduct, nothing equivocal or inconsistent is shown.
Under all these circumstances, I am constrained to conclude that the property in the schooner is still in plaintiffs, and that the judgment ought to be reversed.