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Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0005-0004-0001

Editorial Note

This is a companion case to Bancroft v. Lee, No. 10. John Crowningshield was one of the underwriters on the marine insurance policy taken out by Lee in 1762 upon one half the cargo of the schooner Merrill. He had submitted to the arbitration of Lee's claim, and in 1765 he finally paid his share of the Merrill's loss after Lee had recovered judgment against him upon the arbitration award in the Inferior Court. Crowningshield thereafter died, but in March 1769 his widow, perhaps inspired by the success of other underwriters in reopening the matter, brought an action against Lee in the Salem Inferior Court, alleging a false affirmation and the concealment of material circumstances in language virtually identical with that used in Bancroft's declaration. At the July term 1769 she obtained judgment after a jury trial,1 and Lee appealed to the Superior Court, where Adams and James Putnam served as his counsel.
Adams' short minutes of the trial in November 1769, printed below, deal almost entirely with the evidence presented on the question whether Lee's failure to reveal his orders to the master, Nicholas Gordon, amounted to concealment of a material circumstance. Lee's written application sought insurance for a voyage “from Marblehead to any and all the West India Islands to Windward of St. Croix, St. Thomas, the Havana, and Jamaica till said Cargo is sold and delivered.” Although this description is not without ambiguity, read literally it would seem to include both Guadeloupe, to which the master testified that Lee had directed him orally, and Martinique, the destination in Lee's written orders. Both islands lie { 198 } generally in the direction of the prevailing easterly trade winds from the named points. The plaintiff presumably accepted this reading, since she did not plead and does not seem to have argued either that this language, which was substantially repeated in the policy, was a warranty breached by a voyage to Martinique, or that a voyage to Martinique was outside the policy's coverage. Her point may have been that failure to disclose orders to Martinique was a concealment despite the literal meaning of the description of the risk, because the island had just been captured from the French and was still in a dangerous zone.
Lee apparently relied on the master's testimony that the final orders were to Guadeloupe. His position may have been that such orders were not a material circumstance, since the latter island had been in English hands since 1759.2 More simply, Lee may have urged that Mrs. Crowningshield's action failed because her declaration alleged concealment of orders to Martinique and the proof was that the orders had been to Guadeloupe. Whatever the argument, Lee prevailed. The judgment of the Inferior Court was reversed with costs.3
Mrs. Crowningshield entered an action of review at the November 1770 Salem Superior Court, with Adams now alone as Lee's counsel. At this term three of the other underwriters joined Mrs. Crowningshield in a rule to refer their claims. The referees brought in a unanimous report in Lee's favor, awarding him costs both of the action and the reference.4
1. See writ and judgment in both Inferior Court actions in SF 131857. Bancroft's declaration is quoted in No. 10.
2. On the war in the West Indies, see sources cited in Knollenberg, Origin of the American Revolution 24 note. As to trade with the French islands, see Goebel, “The 'New England Trade' and the French West Indies, 1763–1774,” 20 WMQ (3d ser.) 331–335 (1963). As to the trade winds, see William Falconer, An Universal Dictionary of the Marine, tit. Wind, 6th–7th (London, 1769). Guadeloupe, Martinique, and the chain of islands south and west of them, were known as the Windward Islands.
3. Sub nom. Lee v. Crowningshield, Min. Bk. 85, SCJ Salem, Nov. 1769, N–1; SF 131857.
4. Min. Bk. 93, SCJ Salem, Nov. 1770, N–4; SCJ Rec. 1770, fol. 226; SF 131988. The parties entering the reference were Joseph Hodges, George Dodge, and Elizabeth Cabot, widow of Josiah. Joseph Ward, the only underwriter who does not appear in litigation, may have settled his claim. See his receipt on the policy. SF 132239. Compare No. 10, notes 2, 3.

Docno: ADMS-05-01-02-0005-0004-0002

Author: Adams, John
Date: 1769-11

Adams' Minutes of the Trial1

Essex Superior Court, Salem, November 1769

Crowningshield vs. Lee. Salem S. Ct. Novr. Term.
Receipt for the Money, “and Costs of C[our]t.”2
1762. Aug. 9. Sailing orders. To proceed to Martineco or any other { 199 } Island—“and sell, at said Island, or any other Island in the West Indies.”
1762. Novr. 4. Grand terre. Nick Gordon, the Masters Protest, that they saild 4. Septr. from Marblehead bound to Martineco. 17th. Octr. taken.
1769. July 10. Gordons Testimony. “By particular verbal Directions, from Lee, a few Hours before sailing, I proceeded for Guadaloupe, and because Lee told me, that R. Hooper had orderd Captn. Power to Martineco, &c. After trying to get to Guadaloupe and could not, I thought it best to try for Martineco. My Written orders to proceed to Martineco or any other Island.”3
Rob. Hooper Esqrs. Test[imony].
The Mate's.4
1. In JA's hand on verso of his notes for No. 10, Doc. I. Adams Papers, Microfilms, Reel No. 185.
2. That is, Lee's receipt to Crowningshield for “fifty pounds he underwrote ... and costs of court.” This document, as well as the sailing orders and protest, extracts of which follow, are in SF 131988.
3. This is a substantially accurate extract of Gordon's deposition in Bancroft v. Lee. See No. 10, note 3215. Closing quotation marks have been supplied. As to Hooper, see No. 10, note 258. The files of the Crowningshield case contain his voucher for his expenses as a witness, as well as his order for insurance upon the schooner Dove, Thomas Power master, “to Martineco and from thence to any and all the Leeward Islands to Windward of Sambreo.” SF 131857.
4. See the deposition of the mate, George Gordon, sworn in court, Nov. 1769, substantially concurring with the master's testimony. SF 131988.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/