the plaintiffs seek to recover for a partial loss, either upon the ground that it was occasioned by stranding, or that it amounted to five per cent., they must prove the fact necessary to charge the underwriters. The affirmative of the proposition .rests with the plaintiffs; the means of proof, to say the least, are as much within their knowledge and reach as within those of the defendants; and the difficulty of proving the amount of loss from any one cause is no greater than that of furnishing evidence which would enable the assessor to distinguish between injury to the vessel by perils of the sea and defective condition attributable to wear and tear and other ordinary causes, which, when these cases were last before the court, the plaintiffs were held bound to produce. The plaintiffs have failed to sustain the burden, thus resting upon them, of proving the amount of the partial loss by each peril."

In Cory v. Insurance Co., supra, the court said:

"The policy further provides that the insurers shall not be liable for any partial loss, unless it amounts to five per cent., exclusive of charges and expenses incurred in ascertaining and proving the same; and it is well settled that the burden of proving a loss from a cause and to an amount for which the insurers are liable is upon the assured."

In Marcardier v. Insurance Co., supra, the court said:

"In the present case the facts alleged by the plaintiff do not show a depreciation of a moiety in value excluding the memorandum articles. There is no evidence of the quantum of depreciation of any part of the cargo. The forced sales at Antigua could not, under the circumstances, constitute a medium by which to ascertain it. Admitting, therefore, the rule to be correct that the party had a right to abandon where the depreciation exceeds a moiety of the value, the plaintiff has not brought himself within that rule as applied to a cargo of a mixed character like the present. The court below were right, therefore, in deciding that there was no total loss proved by the perils of the sea."

We are of opinion that these authorities sustain the proposition that the evidence in this case, which consists of mere proof that the cost of repair would exceed the value of the ship when repaired, does not, under the provisions of the policy, prove either an actual total loss or a constructive total loss, and does not prove a partial loss.

There is no rule or presumption of law which makes the seaworthiness of the vessel at the commencement of the voyage prima facie evidence that the subsequent repairs made during the voyage arose. solely from some extraordinary peril. The underwriters are never liable for losses occasioned by the mere wear and tear of the ship during a voyage. Mr. Justice Story, in Donnell v. Insurance Co., 2 Sumn. 366, Fed. Cas. No. 3,987, upon this question among other things said:

"In every case in which the assured seeks to recover for such repairs against the underwriters he must show, not only that they were proper and necessary, but that they became so from the extraordinary perils of the voyage, within the policy. The loss is like every other loss within the policy. The onus probandi is on the assured to establish it by competent and satisfactory proofs, before he is entitled to recover it."

In 2 Phil. Ins. § 2141, the author said:

"The seaworthiness of the ship at the beginning of the voyage is not a ground of presumption that all the repairs that became necessary within the period of the risk, or a passage, were rendered necessary by extraordinary perils; the burden of proof is still on the assured otherwise to prove the damage to have been the effect of the extraordinary operation of the perils insured against."

The policy in the present case provides "that the insured shall not have the right to abandon the vessel, unless the amount which this company would be liable to pay under an adjustment, as a partial loss, * shall exceed half the amount hereby insured." The contention of the plaintiffs is that (less certain stipulated deductions) a total damage to the vessel exceeding $7,500 in the one case and $2,500 in the other would render the insurance company liable to pay an excess of "one-half the amount hereby insured." In their brief counsel say: "We do not have to prove any greater loss than $7,500 net as against the Western Assurance Company, and $2,500 net as against the Thames & Mersey Company. Proof of these amounts gives us the same right to abandon as proof of loss amounting to $75,000."

The contention of the defendant upon this point is that, in order to determine what the company "would be liable to pay under an adjustment as for a partial loss," the total damage to the vessel (less the deductions) must be ascertained, and compared with the valuation as stated in the policy; that the company would be liable to pay such proportion of "the amount insured" as the total damage thus ascertained bears to that valuation, because, in order to create the liability to pay one-half of the amount insured, the total damage must equal one half of the insured value.

The text-books say:

"It is an elementary principle of insurance law, which pervades the whole system, cannot be enforced too early, nor borne in mind too attentively, that the underwriter pays no loss except with reference to the sum on which he is paid premiums; the whole sum, if the loss be total; same aliquot part of the sum, if the loss be partial." 1 Arnold (2d Ed.) *7, *8.

"An insurer must pay the same proportion of the whole loss that the sum insured is of the whole amount of the insurable interest." 2 Phil. Ins. § 1435.

In Murray v. Insurance Co. (Sup.) 25 N. Y. Supp. 414, 416, the court held that in determining the proportion which the cost of repairing a vessel must bear to its value, so as to justify its abandonment to the insurers as a constructive total loss, its value as stated in the policy controls.

But it is unnecessary to decide in the present case whether the amount of the insurance of $15,000 in the one case, or $5,000 in the other, or $75,000, the value of the ship mentioned in the policy, constitute the basis of the computation, because no evidence appears in the record to give any basis whatever for the determination of the percentage of damage. The only evidence in this regard is confined solely to the proposition, heretofore stated, that the vessel when repaired would not be worth the cost of repairs, which is, as we have heretofore attempted to show, wholly insufficient. There must be some testimony upon which a jury could act in fixing the amount of damages. There being none, the court did not err in directing the jury to find a verdict for defendants.

It is next claimed by the plaintiffs that the defendant accepted the ' abandonment. The record shows that between November 23, 1898, and December 1, 1898, plaintiffs furnished defendant with notice of abandonment and proof of interest and loss, to which notice of aban

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donment defendant on or about December 1, 1898, responded in writing, declining to accept abandonment. It was admitted upon the trial that one Capt. Turner, early in December, came to Hilo, as the representative of the Western Assurance Company, to represent the interest of the insurers "under the sue and labor clauses, to do the best he could for all concerned." Capt. Milnor, of the steamship company, testified, in answer to questions, as follows:

"Q. I understood you to say after Mr. Turner arrived you co-operated with him in all matters pertaining to the interests of the vessel and all parties interested with her? A. I did, sir. Q. Did you so continue until you left the ship? A. Yes, sir. Q. I believe you said you executed the bottomry bond at Hilo? A. Yes, sir. Q. At whose request did you execute that? A. I executed it at the request of Capt. Turner.

Q. What did he say about the ship, if anything? A. Well, he thought that the ship was in pretty bad condition, but that she could be repaired in Honolulu. Q. What was said by you in answer? A. * * I stated I

*

doubted if she could be repaired at Honolulu, and he told me that he had consulted with Mr. Lisle, I think it was, who owned marine railway there, and that Mr. Lisle had stated to him that the vessel could be hauled out on those ways and repaired. I stated that I did not think the ways were heavy enough, and he thought that the ship ought to go to Honolulu. Q. And what did he do in connection with taking her, if anything, to Honolulu? * Did he say anything to you at that time or give you any directions or instructions? A. He said this ship ought to go to Honolulu. At the time he served the paper he did not give me any instructions. Q. Did he give you any instructions after that? A. Well, there was a conference in the office of the consular agent at Hilo, and there was present at that conference Mr. Boyd, the vice consular agent from Honolulu, and Mr. Ferno, the consular agent, Mr. Jacobson, Capt. Turner, and myself. * * * Sheriff Andrews bustled into the room with a number of lien claims, and was in the act of serving papers on me in some libel suits which were about to be brought. I fell back on my rights as an American citizen, standing then on American territory, and the sheriff had invaded that territory; but Capt. Turner said: 'Mr. Sheriff, if you will suspend the service of those papers for a day I will personally see that these matters are settled.' The sheriff, after some consultation, retired. Capt. Turner made a statement, if I remember correctly, of the situation to the vice consul, claiming that he thought the ship abundantly able to go to Honolulu, and it would be for the best interests of all concerned that she should go there. I refused to assume the responsibility of going or attempting to take the ship to Honolulu, fearing that she would go down on the voyage, and that the responsibility would be upon my shoulders. After considerable argument it was- Capt. Turner stated that the status of the ship should be- -as respects the insurance - the same at Honolulu as it then was at Hilo. He further stated his firm belief that she was able to make the voyage, and insisted upon going. Consul Boyd then insisted on my taking it upon Capt. Turner's assuming the responsibility, which he did. Q. Who financed the boat out, if you know? A. Capt. Turner saw a Mr. Mason, a merchant at Hilo. I don't know how that transpired. I was not present at the conference between them; but about two thousand dollars was required to finance the ship out of Hilo, and Mr. Mason put up the sum of money and took the bottomry bond. Q. At whose request? A. Capt. Turner made the negotiations with him; I did not. Q. Were there any temporary repairs made to the machinery? A. Yes, sir. Q. At whose direction were those repairs made? A. I can't swear to that positively. Q. Were they made at your directions? A. Everything about the ship was made by my direction, in this way. I ordered the men to make such partial repairs about the machinery of that ship as would enable them to keep her afloat under all contingencies. It was my duty to save the property, and I was acting along that line."

*

It will be seen from the testimony that Capt. Turner and Capt. Milnor worked together for the benefit of all concerned. There are no facts in the case which show that Capt. Turner performed any act beyond the powers conferred upon him by the "sue and labor" clause. When the ship arrived at Honolulu she was libeled by the seamen for their wages, for which the ship was liable. This deprived the defendants of the power to possess themselves of the property, and made an acceptance of the abandonment impossible.

Washburn & Moen Mfg. Co. v. Reliance Marine Ins. Co., 179 U. S. 1, 18, 21 Sup. Ct. 1, 45 L. Ed. 49, was the case of an insurance on the cargo of a vessel which put into port at Key West, from which point the goods were forwarded to their destination, where they were tendered to the plaintiff, who refused to accept them, having abandoned them to the insurance company for a total loss. There were

no facilities for handling and no market for the goods at Key West, but there were at the port of destination to which they were brought by the insurers. The goods were sold in an action for freight, demurrage, and expenses on the part of the vessel that had brought them forward from the port of distress. There was some controversy in the testimony as to who forwarded the goods,-whether it was by the direction of Capt. Hall, who was acting for the insurers, or by the defendant. The record shows that the agent for the board of underwriters testified that he instructed the agent at Key West to see that a vessel was secured and the cargo properly shipped to Velasco according to the original bill of lading; that Hall authorized the Cactus to be chartered, and that he always insisted that Hall should forward the cargo, while Hall stated that he had received a request from defendant's agent to so forward it. The supreme court in the case, among other things, said:

"The circuit court correctly ruled that under the terms of the policy plaintiff could not recover for a constructive total loss of the goods insured, and, inasmuch as a large part of the goods reached Velasco in specie, a substantial part of them being wholly uninjured, was right in declining to permit the jury to pass on the question of actual total loss. There is nothing taking the case out of the general rule. The forced sale certainly does not affect it. * If there had been a constructive total loss and a sufficient abandonment prior to the sale, defendant was then liable. As there was not, and no right to abandon or acceptance of abandonment, the goods were at plaintiff's risk, and defendant was not responsible for any loss plaintiff sustained by the sale. But although, as we have seen, plaintiff had no right to abandon, and although defendant specifically refused to accept an abandonment, it is contended that defendant transshipped the wire, and that such transshipment amounted to an acceptance of abandonment. The circuit court of appeals was of opinion that the forwarding from Key West to Velasco was done under the authority and with the approval of the captain of the Benjamin Hale. As the cargo was in a condition for transshipment, and there was opportunity to effect it, defendant rightfully insisted that it was the duty of the master to forward it to the destined port. Yet even if the underwriters chartered the Cactus, and forwarded the cargo, we agree with both courts that neither that nor any other act disclosed by the evidence would have authorized the jury to find that defendant had accepted the attempted cession of the cargo. The sue and labor clause expressly provided that acts of the insurer in recovering, saving, and preserving the property insured, in case of disaster, were not to be considered an acceptance of abandonment. Whether regarded as embodying a common-law principle, or

as new in itself, the clause must receive a liberal application, for the public interest requires both insured and insurer to labor for the preservation of the property. And to that end provision is made that this may be done without prejudice. If, then, it was the insurer that carried the property to be preserved and carried to Velasco, where it was offered to the consignees, such labor and care, rendered in good faith, did not operate as an acceptance of abandonment, and especially as there was no right to abandon and a distinct refusal to accept. Acts of the insurer are sometimes construed as an acceptance, when the intention to accept is fairly deducible from particular conduct, in the absence of explicit refusal. Silence may give rise to ambiguity solvable by acts performed. Here, however, defendant refused to accept, and there was no ambiguity in its attitude; and what was done, if done by it, was no more than it had the right to do without incurring a liability expressly disavowed. There was nothing to be left to the jury on this branch of the case."

Under all the circumstances of this case there was not, in our opinion, anything to submit to the jury on the question of acceptance of abandonment.

The only point presented by plaintiffs in case No. 749 not covered by the views already expressed is the fact that the defendant demanded and accepted payment of one of the premium notes after the notice of abandonment and notice of loss, and that a further demand was subsequently made by the defendant for payment of the remaining premium notes. It is true that the receipt of a premium after a forfeiture occurs might waive the forfeiture; but in this case the question as to the right of plaintiffs to recover depended alone upon proofs of loss, and as no loss, within the terms of the policy, was proven, they cannot recover. The receipt of the premium did not relieve the plaintiffs from the necessity of proving such a loss. The record shows that:

"It was further stipulated to be the fact that the defendant made full and proper tender on March 2, 1901, of the full amount of the premium paid to the said Thames & Mersey Marine Insurance Company, for or on account of insurance effected by said plaintiffs, or either of them, with said Thames & Mersey Marine Insurance Company on the steamship City of Columbia, under policy of insurance now in evidence, and that they made full and proper tender and offered to return the unpaid premium notes on account of said premium."

We are unable to see how the facts stated could in any manner affect the results reached by the court below.

The judgments in both cases are affirmed, with costs.

BOARD OF COM'RS OF FRANKLIN COUNTY, OHIO, ▼. GARDINER SAV. INST.

(Circuit Court of Appeals, Sixth Circuit. December 2, 1902.)

No. 1,106.

1. MUNICIPAL BONDS-COUNTY BONDS FOR ROAD IMPROVEMENT-OHIO STATUTE. Act Ohio March 26, 1890, as amended by Act Ohio March 7, 1892 (89 Ohio Laws, p. 66), authorizes county commissioners in counties in which there are situated cities of the first grade of the second class to improve roads or streets in certain cases, on petition, when they deem the same a judicious improvement, and to assess the cost thereof on abut