This case was before the court, in June term, 1826, and was then argued and adjudged: but a rehearing having been allowed, on the application of the defendants, who are here appellants, we are now obliged to inquire into the correctness of our former judgment.
The suit is brought on a valued policy of insurance, in virtue of which, the plaintiffs claim to recover from the defendants $11,000; being the estimated value of a cargo of mules, insured from St. Yago, in Mexico, to Havana, in Cuba.
The policy is drawn up in the usual form of such instruments, containing a printed memorandum which excepts from average, unless general, or amounting to a certain percentage, several articles of commerce therein enumerated; and also a written clause, stating the amount or value of the cargo insured; the kind of property of which it was to be composed, and situation in the vessel; and concludes by declaring the “insurance to be against stranding or a total loss.”
•The evidence of the case shews, that in pursuance of the policy thus obtained, the plaintiffs put on board the vessel desig*539nated therein, seventy four mules, being the species of properly which it was to constitute her cargo, according to the written clause of the instrument; that out of the whole number of animals composing the cargo insured, thirty-five were entirely lost, in consequence of the occurrence of perils, against which insurance was effected, and the balance (being thirty-nine) found to be much injured, and lessened in value, on their arrival at the port of destination. An abandonment was tendered to, but refused by the defendants, from whom the plaintiffs claim the entire value of the cargo, as for a total loss; or such other sum as may appear to be due to them on the policy. Their right to recover, is denied in toto.
The various grounds of opposition to the justice and legality of this claim, set forth in the points filed by the defendants, have been examined by the court, as may be seen in the judgment heretofore rendered. The principles therein settled and established, are as follow; 1st. According to a just interpretation of the written clause in the policy, the entire cargo of mules is placed on the footing of articles excepted from partial loss, in the *540ordinary memorandums of such instruments 2d. A constructive or technical total loss, is excluded from such articles: 3d. Admitting that recovery might be had for a partial loss, the jury to whom the cause was submitted, in the court below, and who found a verdict in favor of the plaintiffs, for $4,500, pursued a legal and proper course, in adjusting the extent of loss, by an estimate made in reference to the valuation ascertained and fixed by the policy: 4th. If part of a cargo, consisting of separate and distinct objects, be entirely lost, even should it be composed of memorandum articles, the assured have a right to recover the value of any one or more, of the objects so lost, although not amounting to a loss of the whole cargo, either physically or in value. See the opinion of the court, as reported in 4 Martin, n. s. p. 640 & seq.
Of the soundness and legality of these principles, so established, we entertain no doubt, except the last, which requires to be again examined and tested, by those rules which ought to be received as of binding force and authority, in relation to contracts of insurance made in this state.
We shall consider the question solely in *541reference to principles which regard memorandom articles, such as are excluded from indemnity except for a total loss, or in other words, from average unless general. Considered in this light, the counsel for the defendants contend, that as part of the cargo, composed as above stated, arrived at the port of destination, and was of some value, they are entirely exonerated from every species of obligation to indemnify the assured.
The effect of the memorandum on articles therein specified in a policy of insurance, and the extent of the obligations which such a clause creates, have frequently been subjects of discussion in the courts of the United States, and those of the states individually, and the doctrine established by the decisions of those courts, in cases similar to that now under consideration, is relied on by the appellants as decisive of the present controversy in their favour. They have been cited, and commented on in the written argument, as well as at the bar; we have examined them attentively, and are of opinion that they fully support the ground of defence assumed without variance or exception. Vide 7 Cranch, p. 415. 8 Do. 39. 1 Wheaton, p. 219. 1 Caines, 296. 3 Do. 198. 6 Mass. 465. 7 Johnson, 527.
*542As the doctrine contended for by the defendants appears to be firmly settled by the uniform tenor of the decisions in these cases, and has thus become a part of the lex mercatoria of the United States, our attention is directed to the case of Barry vs. The Louisiana Insurance Company, adjudged by this court, as reported in 12 Martin, beginning at page 493; wherein it was declared unequivocally, “ that the contract of assurance is understood here as it is in the other maritime cities of the United States.”
From the reasoning of the opinion in that case, it is readily perceived that the court in consequence of the absence of any positive and express provision in our laws on the subject, rightfully assumed the privilege of declaring the rules which prevail in the other states of the union, in relation to the contract of insurance, to be applicable to such contracts when made in this state, as the adoption of such as might be different and repugnant, would cause great inconvenience to merchants throughout our confederation-arising from various and conflicting laws, existing within the same federative government on the subject of commerce.
After such a public and solemn declaration *543of the law of this state, in relation to commerce, it must be believed that all contracts of insurance are made and entered into, in reference to it (thus declared), as the exclusive rule of interpretation, whenever contests or legal controversies may arise as to their true meaning and effect.
This view of the subject alone would, perhaps, be sufficient to shew the error of our former judgment. But the counsel for the appellees strenuously contend, that as the clause of the policy, now under examination, differs essentially from the stipulations contained in those on which the decisions referred to are based, it should receive a different construction and interpretation. We have already stated our entire satisfaction with that part of the former judgment, and firm belief in its truth and soundness, which places the whole cargo of mules on the footing of memorandum articles. If this interpretation of the clause in question be correct, it refutes completely the objections made to the applicability of the cases cited from American reports, and the conclusiveness of the decisions there in found, in favour of the pretensions of the defendants; and surely it cannot be seriously asserted, *544that any difference exists between the legal import and meaning of an exception in the policy insurance, by which the insurers are made responsible for a total loss only, and one which limits their liability to indemnity for general average alone. See. Phillips on Ins. p. 489.
Thus far the court is unanimous in the reasoning against the correctness of our former judgment.
But supposing the doctrine, as we have, assumed it to be, that which the courts of justice of the United States, both federal and state have recognized and established for the government of cases similar to the present; it is contended, on the part of the plaintiffs, that it is unjust in itself, and heterodox in deviating from equitable principles, as ascertained and established by the decisions of the, highest tribunals in England, from which the rules adopted in America have been extracted and received as binding, in consequence of their consistency with reason, equity and justice.
I have examined the cases cited, and relied on by the appellees, and find only one, which fully supports the doctrine for which they contend;—that of Davy vs. Melford, reported in 15 East, p. 559.
*545It is true, that C. J. Gibbs, in the course of his observations, on the trial of the case of Headberg vs. Pearson, seems to have held as true, the doctrine established in the case of Davy vs. Melford; but these observations were mere obiter dicta. See Phill. on Insurance, p. 488. From the decisions in these cases, Benecke, in his treatise on Marine Insurance, lays it down as a rule settled in England, that if part of the goods insured, he wholly lost, and another part saved, that which is wholly lost, is considered as a total loss-on the underwriters. See his book, p. 376.
The decision on which this rule appears to be mainly based, has been strictly examined by one of the advocates for the defendants; and I think his animadversions thereon, are made with considerable accuracy and justness, both in relation to grammatical and legal interpretation.
But whatever may be the rule in England, with regard to dividing a cargo, composed of separate and distinct objects, for the purpose of enlarging the stipulation in a contract of insurance, which limits the responsibility of insurers to a total loss only, it is believed that *546none such exists la the United States, or in this state. The clear, evident, and ordinary the written clause in the policy, on which the present suit is founded, according to just grammatical and legal construction, limits the liability of the defendants to indemnify, for such loss only, as amounts to an entire physical destruction of the whole cargo, or perhaps a total loss as to the value; neither of which has occurred, as shewn by the testimony of the cause. No injustice takes place—no violence is done to the principle of equity and natural right, by interpreting contracts according to the legal and ordinary import and meaning of the words used in making them, as arranged in grammatical construction,—such meaning, as every person acquainted with the structure of language, would attach to them. If the plaintiffs mistook the nature and extent of the indemnity, which the defendants obliged themselves to make in pursuance of their contract of assurance, and have, thereby, suffered loss; the fault is their own—it is damnum absque injuria, for which remuneration cannot be rightfully claimed.
Morse & Grymes for the plaintiffs. Workman & Eustis for the defendants.