WILSON V. JONES. [ *80 ] MARTIN, B., ruled at the trial that the plaintiff was entitled to recover as for a total loss, and directed the jury accordingly, leave being reserved to the defendant to move. A rule was subsequently obtained to enter a verdict for the defendant, on the ground that the loss was not caused by the perils insured against, or that, if it were, it was only an average loss, and there was no evidence that it was higher than 31. per cent.; or to reduce the damages, on the ground that the loss was only an average loss. This rule was afterwards discharged by the Court of Exchequer (1), and the defendant now appealed from that decision. The argument of Brett (with whom was Quain), for the appellant, was substantially the same as that urged by him in the Court below. S. Temple (with whom was L. Temple) was not called upon to argue for the respondent, the plaintiff below. WILLES, J.: In this case everything depends on the construction of the written. words superadded to the original printed form of the policy, which was of a remarkable and unusual description, containing exceedingly special provisions. It was for the insurance of an undertaking of a novel and very speculative character-a project involving a great deal of risk and uncertainty. Until the cable was laid down, the shares in the Company which was formed to carry out the undertaking were, of course, of very questionable value; but it was expected, probably with reason, considering the efforts made to carry the project into effect, that very large profits would be made if the Company should be successful. The plaintiff took shares in the undertaking; and it is material to observe what his interest. was, and the character of the shares which he possessed. Now, it has very properly been assumed in the course of the argument (or, if it has not been assumed, it may properly be asserted without referring to authority) that the plaintiff, in respect of his shares in the Joint-stock Company, had no direct or immediate interest in the cable itself. The shareholders in a Joint-stock Company have an interest in the profits to be made by the concern; but they have no direct or immediate interest and property in the concern itself. Upon this were founded the decisions which finally established that a share of this description would not be within the Statute of Mortmain, to which it is not necessary further to refer. cable was actually fished up in the ing messages across the Atlantic. v. JONES. A person then, having an interest in the profits to be made by the WILSON Company in the event of their laying a cable, but not having any direct interest in the cable itself, insures the profits which he expects to make against the perils which he anticipates may endanger them; and we must therefore read this policy with reference to that state of things and the state of the law which would be familiar to every man of business. Now, let us look to the language in which the parties make this contract of insurance, and see whether what the plaintiff insured was an interest in the cable (which it was not in any direct sense), or an interest in the profit to be made by means of the cable, if it should survive the risks and contingencies of its being laid down, and laid down. effectually, so as to carry a message of 100 words from Ireland to America, and vice versâ. I think, when the language is read with reference to the subject-matter of the contract, and when the quantum of interest of the plaintiff is borne in mind, it is very plain that this was an insurance of his share in the profits to be made if the cable was effectually laid down, and not an insurance either on the shares themselves or on the cable in any other sense. In one sense, no doubt, it was an insurance on the cable, in the sense that it was an insurance affecting the cable; just as an insurance of freight, in one sense, may be said to be an insurance on the ship, because the state of the ship and the state of the freight are so connected that it is impossible to dissever the one. from the other; and in cases where the freight is affected by the loss of the goods (in which case it might equally be said that the insurance on freight was an insurance on goods), if the freight were lost by perils within the policy destroying the goods, so that the freight could not be earned on them, the insurers would become liable on the policy, just as much as they would become liable if the ship were injured, and the earning of the freight were prevented by such perils accruing to the ship. Except in that sense, when the language is looked at with reference to the subject-matter, this insurance appears to be an insurance on the plaintiff's interest in the profits of the undertaking. After the ordinary printed language, the policy says, "which by agreement between the assured and the assurer are and shall be valued at 2001. on the Atlantic cable." Of course, if these words stood alone, there would be an insufficient description of the particular interest which the plaintiff alleges he insured. (It may be that, although he had no direct interest in the cable, he might still have had an interest to satisfy the statute; but I give no opinion upon that; I only observe on the point in passing, lest it should be supposed that the Court overlooked it). But then come the words "value say on twenty shares valued at 10l. per share." Here we have language which qualifies the previous WILSON v. JONES. [ *81] language, followed by a context inserted in the margin, which plainly shows that the plaintiff's interest in the profit to be derived from his shares was the object of the insurance: "It is hereby understood and agreed that this policy, in addition to all perils and casualties herein specified,"-excluding any argument as to the meaning put by casual construction on the language "perils of the seas," or the more general language at the end of the printed clause referring to peculiar and special perils and casualties,— "shall cover every risk and contingency attending the conveyance and successful laying of the cable from and including its being put on board the Great Eastern, &c." Upon looking to the subjectmatter of the insurance and to those words, I think it is impossible to avoid coming to the conclusion which was arrived at by the learned Judge at the trial, and confirmed by the Court of Exchequer, that the insurance was upon the interest of the plaintiff in the success of the undertaking. The The defendant contends that, if the Court should put such a construction on the policy, it would be in effect saying that the parties had entered into a wager. If by that he means a wager such as would fall within the 8 & 9 Vict. c. 109, s. 18, and therefore be void, one must at once reject it, because that Act does not affect speculative contracts in which parties have an interest, but only relates to what is ordinarily known as a wager, the betting between two parties on a future event, rather than a contract of indemnity which, though in *scientific treatises on the law it might be classed and compared with a wager in many respects,-is, in the practical administration of the law, distinct from it. Then again the defendant says this is so unusual and so out of the ordinary course that the Court ought not to come to the conclusion that he intended to bind himself to insure against a profit so speculative. answer to that argument is, that the only proper conclusion to arrive at in the way of a judgment in respect of such a consideration is--when we are quite sure that the language used in the policy has the effect which is attributed to it, then not to be deterred from giving it that effect by any consideration of the unusual nature of the insurance itself, or because it is of a comparatively novel kind. That is nothing more than the sort of argument which was advanced in the case of M'Swiney v. The Royal Exchange Assurance (1), with respect to an insurance of profit on goods. M'Swiney bought 6,000 bags of rice to arrive from India, and sold them at a considerable profit, and he insured his profits on the rice. After 1,200 bags had been put on board and the policy had attached, some peril of the sea happened which drove the vessel to sea and injured her, so that she (1) 80 R. R. 345 (14 Q. B. 634, 646; 18 L. J. Q. B. 193). could not continue the voyage, and spoilt the 1,200 bags of rice, so that they could not go on. The contract being an entire contract, it became impossible to fulfil it, and M'Swiney lost his expected profit. The Company said the profits must be the ordinary profits expected from the export from India of the rice, and they resisted the action in respect of the special profit, or any profit calculated on the rice which was not shipped. The argument for the underwriter principally was, that the profit had not been sufficiently described in the policy. There was a minor point, that the profit was only insured as to such goods as were actually loaded on board. Both questions of construction were argued in the Court of Queen's Bench, and in that Court judgment was given for the plaintiff, no one supposing there that by reason of the speculation being like a wager the policy was void. That judgment was reversed in the Exchequer Chamber, on the ground that the language of the policy was not sufficient to describe the speculative profit to be derived from the rice not actually on board, the loss of which was not occasioned by "perils of the sea"; and PARKE, B., ends his judgment with the words, "If the policy attached to the profit of the goods on shore, there has been no loss by the perils of the sea; but only a retardation of the voyage, for which the defendants are not responsible unless under a policy specially providing for such an event." No doubt, this policy was framed by a person to whose mind those considerations presented themselves, or probably on good advice with reference to the perils against which the insurer might claim to be indemnified. This, then, being an insurance on the adventure, it may be proper to consider what the adventure was. In addition to the language I have already read, it may be proper to refer to the language describing the voyage. The insurance is, "at and from Ireland to Newfoundland, the risk to commence at and from and including the laying of the cable, and to continue until the cable be laid in one continuous length between Ireland and Newfoundland, and until 100 words shall have been transmitted, &c., the policy then to cease and determine." That was considered of so much importance that it is repeated in the subsequent part of the policy, under the clause making it an essential condition that 100 words should pass. In drawing a conclusion from this, my mind inclines to either of these that it was an insurance on the adventure limited to the endeavour upon that occasion to lay the cable, and that by the failure of the adventure upon that occasion a total loss accrued; or that, at the least, it must be inferred from the language of the parties that it was considered by them that, unless the result so described was arrived at on that occasion, there was an end of the matter; and that it was all up with the adventure WILSON v. JONES. WILSON v. JONES. [82] unless the cable should then be laid so as to pass 100 words from one end of it to the other. The second question is, whether there was a loss by the perils of the sea, or by the other perils insured against. If the insurance had been limited to the special language used in ordinary policies, it might have been necessary for us to do no more than to put a construction on the ordinary general words at the end of the clause defining for what perils the underwriter is to be answerable, those words being very general in themselves: "all other perils, losses and misfortunes which have or shall come to the hurt and damage of the goods or any part thereof." It is not necessary to do that (for the reasons already referred to when considering the description of the interest), because of those words providing that the policy "shall cover every risk and contingency attending on the conveyance and successful laying of the cable from its being put on board the Great Eastern, in addition to all perils and casualties before specified." It is clear then that the parties have decided this question for themselves, and that the defendant is liable unless it should appear on the facts that the peril in question ought to be attributed to some inherent vice in the cable itself, or to some other of the implied exceptions (if there be any) in the contract of indemnity contained in the policy of insurance. This brings me to the statement in the case as to what actually happened. In the course of paying out the cable, it became necessary to haul some of it back into the vessel; after a portion had been hauled back, the cable broke at a place which was or might have been subject to be hurt in the necessary operations for hauling it back; and this brought the adventure to an end, and caused its failure for that time. We are not called upon to pronounce any judgment on the facts. I will only say that it is impossible, upon these facts, to come to the conclusion that there was no evidence on which a jury might properly say that the loss happened by a "risk or contingency attending the conveyance and successful laying of the cable from and including the lading on board the ship." It has not been suggested that the cable itself was defective. Many things might be imagined for which the underwriter would be liable; and there is more than sufficient to sustain the argument that this was not a question which the learned Judge could, as a matter of fact, have declined to leave to the jury. To come to the third question,-assuming there was a loss, was there a total loss? The defendant says correctly that, if there was an insurance on the cable, of course there was no total loss. It is not necessary to go into that. The conclusion which it appears just to arrive at is, that this was not an insurance on the cable, but |